Association of Mineworkers and Construction Union and Others v Anglogold Ashanti Limited (J1995/13) [2015] ZALCJHB 462; (2016) 37 ILJ 2320 (LC) (3 November 2015)

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[2015] ZALCJHB 462
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Association of Mineworkers and Construction Union and Others v Anglogold Ashanti Limited (J1995/13) [2015] ZALCJHB 462; (2016) 37 ILJ 2320 (LC) (3 November 2015)

THE
LABOUR COURT OF SOUTH AFRICA,
IN
JOHANNESBURG
Case
no: J 1995/13
Reportable
In
the matter between:
ASSOCIATION OF
MINEWORKERS AND CONSTRUCTION UNION
First Applicant
APPLICANTS
APPEARING IN ANNEXURE “A”
Second to
Further Applicants
and
ANGLOGOLD
ASHANTI LIMITED
Respondent
Heard:
3-5, 10,-12, 6 – 19 February 23 March  and 15
May 2015
Delivered:
3 November 2015
Summary:
(Unprotected Strike –
Automatically unfair dismissal based on union membership –
substantively and procedurally unfair
dismissal – relief –
Effect of s 54 Notice under MHSA on strike).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This case concerns the fairness of the
dismissal of 539 employees of the respondent arising from their
alleged participation in
an unprotected strike on Saturday, 20 April
2013. Whether or not there was a strike on that day is in dispute,
though the applicants
accept that if it is proven that there was a
strike it was an unprotected one. One of the unusual complicating
factors in the case
is that the normal operations of the mine were
suspended during the period when the alleged action took place for
reasons that
are set out in more detail below.
[2]
The dispute about the fairness of the
dismissals is a multi-layered one of alternative claims ranging from
automatically unfair
dismissal to substantively and procedurally
unfair dismissal. A thread in the claims of automatically unfair
dismissal and the
alternative claim of ordinary unfair dismissal is
that the 539 workers dismissed in consequence of this event were only
AMCU members,
whereas at least 500 others who did not report for duty
were not dismissed. Another important strand is that AGA did not deal
with
the applicant’s or the union in the same way that it had
dealt with far more serious industrial action at Mponeng and Tautona

mines, where nobody had been dismissed for participating in
unprotected strike action.
[3]
At the time of the events in April 2013,
AMCU’s membership at Moab Khotsong was 799 and NUM’s 3
366 out of a total workforce
of 4646, or 17 % and 71 % respectively.
Although various figures were presented in the course of the trial,
from the most definite
ones provided by Mr W van Heerden who was the
Senior HR Manager at Moab Khotsong (‘van Heerden’) it
appears that
1924 (63 %) of the 3043  miners rostered to
work did report for duty on their ‘Saturday shift’ of 19
or 20 April.
During evidence, this figure was broken down as follows:
142 out of 420 workers rostered (34%) reported for duty on the night
shift;
933 out of 2463 workers rostered (38%) reported for duty on
the day shift, and 44 out of 160 workers rostered (34%) reported for

duty on the afternoon shift. According to van Heerden, a 10 %
shortfall on full attendance would have been normal.
[4]
Van Heerden and Madondo also testified,
though none of this information had been tested with the applicants’
witnesses who
had reported for work, that 112, 759 and 29 team
leaders, miners and shift bosses clocked in underground on the night
shift, day
shift and afternoon shifts starting on 19 and 20 April.
Correspondingly, 31, 174 and 50 surface staff clocked in for the same
shifts,
though some of the supervisory staff would have been
attending training on account of the suspension of normal mining
operations
and the conditions governing the suspension.. Van Heerden
claimed that the training which took place at Gateway training centre

was scheduled in such a way that some supervisors would have gone on
Friday and others on Saturday, which is something confirmed
by a
shift boss who testified.
[5]
A total of 585 employees, all of whom were
AMCU members, were charged for participating in the alleged strike.
Of these, 323 employees
attended hearings and appeals. Of AMCU’s
799 members 539, or two-thirds of them, were dismissed. Of those
members who were
dismissed, more than 200 did not attend a
disciplinary hearing. No NUM members were charged for participating
in the alleged strike.
[6]
Of AMCU’s members, 243 remained
employed after the dismissals. Nearly 168 of them did report for work
either on 19 or 20 April
and were not dismissed. A further 16 who
attended training at the gateway training centre and another 13 who
reported to the helipad
on 20 April were also not dismissed. In
addition, 46 who were accused of participating in the strike were
found not guilty and
consequently escaped dismissal. According to
statistics provided by the company, of the total number of 1512
employees living at
the Itireleng hostel on the mine premises, only
195 were applicants, amounting to about one third of the AMCU members
charged for
striking and just over 36 % of all those dismissed..
According to the uncontested evidence of Mr I Jacobs, Vice President
of Labour
Relations for Anglo gold Ashanti (‘AGA’) in
South Africa (‘Jacobs’) the remaining two thirds of the
workforce
live in AGA villages in the neighbouring towns and travel
to work using public transport or their own private transport.
[7]
There are also unfair dismissal claims for
misconduct pending in respect of 17 alleged instigators of the strike
and the local AMCU
leadership (‘the top seven’) at Moab
Khotsong, which did not form part of these proceedings.
[8]
There are also a number of ancillary
matters the court had to determine including the appropriate relief
that should be granted
to a group of identified employees whom the
respondent concedes should not have been dismissed for alleged
participation in an
unprotected strike, because they had some or
other acceptable justification for not being at work on the day in
question. This
group comprised in all, approximately 37 of the
applicants. During the course of hearing evidence, AGA tendered to
reinstate some
of those in this group, some with immediate and full
retrospective effect. In the case of others, the only dispute
remaining is
to what extent their reinstatement should be
retrospective.
[9]
At the start of the proceedings the parties
conducted an
in loco
inspection encompassing the Vaal region operations of AGA in which
the relevant events took place. The locations observed in the
course
of that inspection were confirmed by the evidence of a security
superintendent for AGA, who had been the guide during the
inspection.
The Vaal region mines consist of Kopanong, Moab Khotsong and Great
Noligwa.
[10]
The main events at Moab Khotsong canvassed
in the evidence took place in the vicinity of the Itireleng hostel
complex (sometimes
referred to as no 1 shaft) on mine property, the
Moab Khotsong mine itself (no 11 shaft); a recreation facility, where
the disciplinary
process was conducted, known as Eagles’ Roost,
and the Gateway training centre. All of these locations are at least
a few
kilometres apart on the West Vaal region property.
Chronology
[11]
Although there are some important disputes
of fact the overall chronology of events pertinent to this matter not
in dispute and
appear in the outline of events and evidence below.
The
2012 unprotected strike in the gold industry and its aftermath
[12]
Following the tumultuous and tragic events
of August 2012 arising from the unprotected strike supported by AMCU
members employed
at Lonmin Platinum,
parts of the gold mine industry also
experienced a prolonged unprotected wage strike which lasted from 22
September to 23 October
2012. The core demand was the demand for a
wage of R 12500. The strike heralded the rise of AMCU as a major role
player in organised
labour at the respondent’s gold mining
operations in the respondent’s West Wits and Vaal River Regions
respectively.
The West Wits region comprises Mponeng, Savuka and
Tautona mines and the Vaal River Region consists of Mophotsong,
Kopanong and
Great Noligwa mines.
[13]
The unprotected strike ended when a 2%
increase was concluded with worker representatives in a labour forum,
which - as one AGA
witness described it - “morphed into AMCU”.
According to AGA it was understood as part of the settlement that
even
though the strikers would return to work and would not be
dismissed for their participation in the unprotected strike,
disciplinary
action would still be taken against them. In October it
was conveyed to AMCU that all the participants in the unprotected
strike
would have a final written warning entered on their records.
However, this decision was not immediately relayed to individual
employees
and the final written warning was only entered on their
records at different dates at the different mines. How it was dealt
with
at each mine is mentioned below.
[14]
Jacobs testified that AGA did not dismiss
workers because it was recognised that AMCU was newcomer to the
industry and it was necessary
to integrate it into the industrial
relations’ infrastructure. In addition, it was virtually
impossible to dismiss the number
of workers involved in the strike.
The
sit-ins at Mponeng and Tautona after the gold industry strike
[15]
Before the end of 2012 there were also
underground sit-ins at both Mponeng and Tautona mines by workers who
had participated in
the previous one month unprotected strike.
[16]
The sit-in by approximately 4000 workers at
Mponeng arose because workers believed that a so-called “starter
bonus”
of R 1500 and which had been promised to them when they
returned to work from the industrywide strike had not been paid
timeously.
Secondly, they were demanding that a certain Mr
Mathlabane, an AMCU leader, who had been arrested in connection with
damage to
property and other offences should be released from
custody. The sit-in was resolved when agreement was reached on
payment of the
bonus and the release of the member in question on
bail. However, AGA deemed it necessary to close the mine for six days
because
it was not sure it could guarantee a safe return to work. A
multi-stakeholder forum including worker representatives of AMCU
members
was convened and a code of conduct entitle ‘guiding
principles’ was concluded on 10 November 2012.
[17]
The mine pleaded that it decided not to
take disciplinary action against employees because the incident was
directly related to
the 2012 strike and it was attempting to
normalise relations with AMCU and ensure that the mine could operate
again. Had it taken
action as a result of the sit-in the guiding
principles agreement could not have been concluded. Jacobs testified
that a decision
had been taken not to dismiss the employees because
it was not in the company’s interests nor in the interest of
establishing
a relationship on a sound footing with AMCU. Moreover,
AMCU leadership had made representations to the mine not to take
disciplinary
action. It could not have concluded the ‘guiding
principles’ document if it had followed the disciplinary route.
[18]
The sit-in at Mponeng on 5 November 2012,
which lasted from 05H00 to 19h30, resulted in a loss of normal
production during that
time apart from damage inflicted during the
action. About 2150 workers had gone underground but refused to go to
their working
areas. A few workers from the previous night-shift also
remained underground.
[19]
The sit-in at Tautona mine on 12 December
2012 lasted 25 hours and was linked to demands to uplift the
suspension of three employees
and to remove the general manager of
that mine. AMCU members had expressed hostility towards him when he
spoke during a mourning
ceremony on 7 December for a driver who had
died in an accident. There was a perception that the rescue
operations had not been
handled with the necessary urgency. The
service later was marred by outright violence when the NUM
chairperson started to his address.
A NUM Health and Safety
representative was severely injured. Disciplinary action was
instituted against a handful of those identified
as being
responsible.
[20]
AGA claimed it decided that because it
could
not
identify who had prevented approximately 2150 workers coming to the
surface, it was not able to discipline anyone. However
Mr W Naidoo
(‘Naidoo’), who was the Senior HR Manager for Tautona and
Savuka mines, agreed that given the events leading
to the sit-in
there was good reason to assume the demands emanated from AMCU
members and they were in a position to identify who
were AMCU members
from the stop-orders received though those still had to be verified.
Had they wished to take disciplinary action
against them they could
have, which Jacobs confirmed.
[21]
Under re-examination he confirmed that
there were two principle reasons the mine did not take disciplinary
action: they were unable
to identify the instigators, planners or
co-ordinators of the sit-in and given the tension and climate at the
mine they did not
want to add fuel to the fire and risk a repeat
incident.
[22]
Jacobs also testified that management was
anxious not to add more fuel to the fire and cause a possible repeat
incident. He was
also emphatic that, unlike the situation which
unfolded at Moab Khotsong mine, AMCU leadership did intervene. AGA
had characterised
the sit-in as a hostage situation and not as a
strike. However, Jacobs agreed that those who were supporting the
action withdrew
their labour in support of their demands, which
emanated from AMCU. He also conceded that even though the instigators
were difficult
to identify, those participating in the strike could
have been identified. However, under re-examination he expressed the
view
that the AMCU members were the hostage takers.
[23]
Mr J
Mphahlele, AMCU’s general
secretary (‘Mphahlele’) and  Mr J Gama, AMCU’s
treasurer (‘Gama’)
were called by the local leadership to
assist them, though Mphahlele remembers being called by Jacobs to say
that there was a problem
that workers were underground and he needed
their assistance, which Jacobs confirmed. After a meeting with
management both national
officials went down the mine to address
workers to try and persuade them to return to the surface and end the
sit-in, but were
told that the suspensions had to be lifted and the
manager had to be dealt with. Mphahlele testified that they were told
in no
uncertain terms of the worker’s demands and that it was a
concerted action by those underground. He was also dismissive of
the
suggestion that the mine construed the situation as different from a
strike: ever since he had joined a union the employer
always had a
case to argue that any partial withdrawal of the labour amounted to a
strike. When he went underground with the Treasurer
and others they
did not see any hostages and workers were singing and dancing. Naidoo
said it was ‘difficult to confirm that
there was a hostage
situation, but from the threats to throw some people down the shaft
and the assault on a female employee, the
mine had to assume that not
everybody was a willing participant in the sit-in.
[24]
Naidoo testified that workers underground
escalated the pressure at around 12h00 the next day by making
anonymous calls from different
underground stations threatening to
start throwing people down the shaft if the demands were not met. It
was only at this juncture
that the mine contacted the national office
of AMCU and Mphahlele and Gama arrived an hour and a half later. They
were underground
for two hours, but the workers insisted not only
that the suspension of the three members be lifted, which the firm
was willing
to accede to, but that the general manager be removed.
[25]
It was only later at 03h00 the following
morning when the mine called the SAPS to assist and the union and
management were briefed
by a SAPS senior officer from a specialist
task team on how SAPS would approach the matter that the top seven
leadership at Tautona
were able to persuade workers to abandon the
sit-in. Workers began to surface at 06h00. Jacobs described the
officer in question
as a hostage negotiator, and was adamant that the
situation was not a strike but ‘had the making of a hostage
situation’
as evidenced by the SAPS involvement. The mine even
paid workers for the day, though this was not something canvassed
with the
applicant’s witnesses.
[26]
It was also put to Mphahlele that the
company could not have taken disciplinary action because it could not
distinguish between
those who were withholding the labour and those
who were prevented from going to the surface. He expressed some
scepticism that
there were no CCTV cameras and could monitor events
underground at that time. In any event the mine certainly knew who
was underground
during the event.
[27]
When asked why AGA would not have taken
action at Mponeng if it was antagonistic towards AMCU, which had
achieved a majority support
of that mine, Mphahlele’s response
was that it was precisely because the AMCU was stronger at Mponeng
that action was not
taken against AMCU members there, whereas by
contrast AMCU was a minority at Moab Khotsong and NUM was the
majority union, which
management wanted to protect. Naidoo would not
say that AMCU was a majority union as a verification process was
underway but a
lot of workers reflected as NUM members would have
been ‘transitioning’ to AMCU. In his evidence, Jacobs
emphasised
that for the purposes of union recognition, AGA was
treated as a single workplace despite comprising a number of mines.
[28]
Mr L Nangu, AMCU branch secretary at
Tautona mine (‘Nangu’), testified that it was only when
the three suspended employees
had the suspensions lifted and went
down the shaft that workers agreed to return to the surface. However,
the sit-in only came
to an end at Tautona when the SAPS was called to
intervene.
[29]
As in the case of Mponeng, the final
written warnings pertaining to the 2012 industrywide strike were only
issued on 20 December
2012. However, according to the evidence of
Naidoo, an agreement was reached with Tautona employees on the day
that they returned
to work from the industrywide strike that a
disciplinary sanction less than dismissal would be imposed. Jacobs
confirmed that it
was conveyed that final written warnings would be
issued and that was understood even though it was not issued to
individuals at
that stage. No unions were involved in reaching this
agreement. Nangu also testified under cross examination that by 5
December
2012, workers were aware that they had final written
warnings for the industrywide strike because it had been mentioned by
Naidoo
the time of the sit-in, though he agreed that it was not in
accordance with the procedure. At Moab Khotsong mine, workers were
advised in a briefing on 19 November 2012 that they had been issued
with a final written warning for the industrywide strike. Mphahlele

agreed that it would have been unfair to take account of those final
written warnings when taking disciplinary action against workers

involved in the sit-in.
[30]
Of the applicants dismissed, it turned out
that 39 of them did not have final written warnings on their records.
In the case of
14 of them, they were erroneously recorded as not
having returned from leave or sick leave rather than being absent
owing to being
on strike, and as a result were not issued with the
written warning by mistake.  However VH conceded that the
remainder were
either new recruits or were on leave during the strike
and were correctly recorded as not having been issued with warnings.
[31]
AGA’s version was
that,
what happened at Tautona was not a sit-in as such but a hostage
situation in which a couple of individuals had prevented the
shift
from coming to the surface by taking the keys of the cage from an on
setter. Nangu, who went down the shaft himself disputed
this and said
it was the majority of the workforce which was involved in the
sit-in. When asked how the company could reasonably
have identified
those who were supporting the sit-in and those who were not, Nangu
said that the mine ought to have charged everyone
who was underground
at that time and subjected them to a disciplinary enquiry. Jacobs
conceded that this could have been done as
it was at Moab Khotsong.
Saturday
Working Arrangements
[32]
A central feature in the events which
precipitated the dismissals was a campaign to alter the terms of
Saturday working arrangements.
According to various AMCU office
bearers who testified this was a source of discontent amongst workers
going back at least a few
years before AMCU organised them, though
Jacobs disputed this. According to Mr  Motloi, a demand for an
increase in the allowance
payable for Saturday work had already been
made in December 2012 at Mponeng mine. At the time, Motloi was deputy
branch secretary
of AMCU at Mponeng mine, but when he testified he
had become regional secretary of the Gauteng region. The demand,
which was the
‘most vital’ demand of several demands
submitted, was to increase the allowance to 15% of the weekly wage
for each
Saturday worked. He explained that the requirements to work
on Saturdays, amongst other things, prevented miners, many of whom
were migrants from visiting their families on the weekends, which was
a source of grievance for them. Motloi also explained that
since
workers had joined AMCU, they did not see why they should be bound by
agreements concluded when they were members of the
NUM.
[33]
Various long-standing agreements had been
concluded between the AGA and NUM, UASA, NETU, SAEWA and MWU for the
each of the Company’s
business units, known collectively as the
“
Productivity Agreements”
and which all govern Saturday working arrangements.  All of
these agreements were concluded between August 1999 and August
2008,
before the advent of AMCU at AGA, and it never became a signatory to
any of them.
[34]
In terms of the Productivity Agreements, it
was agreed between the Company and the above-mentioned unions that
the workers would
work every second Saturday and receive additional
pay therefor amounting to 10% of that day’s pay. A number of
such agreements
had been concluded in respect of at Moab Khotsong,
since 1998. For present purposes, the most pertinent one was the one
concluded
on 4 August 2008 entitled “
Agreement
on Safety, Retention and Productivity Initiative:  including
Working Arrangements”
. This
agreement provides for a 10% premium for Saturday work.
[35]
According to Motloi, AMCU leadership was of
the view that the collective agreements were not binding on its
members for various
reasons.  Firstly, the collective agreements
were concluded with NUM, but the employees were now members of AMCU.
Secondly,
AMCU leadership disagreed with the Company’s
contention that the collective agreements were for an indefinite
period of time
and could not be terminated. Lastly, in terms of
the agreement signed in 2002 it was
supposed to be reviewed by both parties after some months, but this
had never been done.
[36]
During December 2012, and specifically in
relation to the Mponeng Mine, AMCU tabled a list of demands including
a revision of all
Productivity Agreements, particularly those in
respect of Saturday working arrangements.  An improvement to the
Saturday shift
allowance was demanded in order to improve their
financial conditions and to fairly compensate them for sacrificing
weekends away
from their families.
[37]
Discussions about the demands only ensued
once a verification process of AMCU’s membership was completed
during January 2013.
AMCU’s demand was for the allowances
set out in the Mponeng Agreement to be amended from 10% to 15% for
each of the two Saturday
shifts worked during any month
[38]
On 15 March 2013, and arising from a threat
by employees at the Mponeng Mine that they would no longer work
Saturdays, management
at the Mponeng Mine issued a brief to employees
stating that the refusal to work on Saturdays would constitute an
unprotected .On
the same day, the Company’s attorneys addressed
a letter to Mphahlele and Mr D Nkalitshana, AMCU’s National
Organiser
(‘Nkalitshana’), advising that the Company was
aware that AMCU had planned an unprotected strike action by its
members
on the Saturday shifts starting on 15 March 2013 and
continuing through 16 March at the Mponeng Mine. No mention was made
of the
Moab Khotsong Mine. The letter concluded in the following
terms:
“
In
the premises, if your members persist with the proposed strike
action, our client will issue ultimatums to AMCU members, which
shall
lead to disciplinary action.  We remind you that your members
already have valid final written warnings for having participated
in
the industry-wide unprotected strike late last year, and thus,
further disciplinary action for the same offence will likely
result
in their dismissals.  Our client further reserves its rights to
launch an urgent application to the Labour Court to
interdict the
strike.”
[39]
Mphahlele replied by letter the same day
and repudiated any suggestion that AMCU supported the strike action
in the following terms:
“
As
AMCU, we have not called an illegal strike and we are not aware of
any proposed strike action, however, we are investigating
the matter
and will revert back to yourselves.”
[40]
Despite the letters which came to the
attention of local leaders like Motloi late on Friday afternoon, 40%
of workers on Mponeng
mine went on strike over Saturday working
arrangements, or put differently there was 50% non-attendance on
Friday and 30 % non-attendance
on Saturday, as it was characterised
by Jacobs. Motloi candidly admitted that the workers felt betrayed by
the letter emanating
from the union, though he agreed Mr Mphahlele
would not have known about the strike and that in fact the local
leadership had concealed
the strike from national office bearers
because they believed they would not support it as it was
unprotected.
[41]
However, after local leadership had
received the letters from the lawyers and head office, the regional
AMCU organiser, Mr Nthuli
(‘Nthuli’) arrived on the
instruction of the national office bearers and reprimanded the local
leadership for embarking
on unprotected action and warned that a
number of people could be dismissed. A meeting that took place with
management and the
regional organiser together with local leadership
and the union went and addressed workers advising them to start
working on the
night shift of that Friday evening. By the time the
leadership went to address workers many of them were intoxicated
because they
believed that they would not be working their Saturday
shifts and consequently were in no condition to go to work.
Management therefore
agreed that no disciplinary action would be
taken against them for non-attendance, even though Jacobs agreed that
the ones who
did not attend were striking for the same reason as Moab
Khotsong alleged AMCU members were striking on 19 and 20 April. At
the
meeting it was also agreed that a meeting would be held at a
higher level with Ashanti gold to discuss Saturday work within seven

days, and that an alternative Saturday would be worked
in
lieu
of the one where workers were
absent.
[42]
The strike was called off, but the mine did
suffer a loss of production. No disciplinary action was taken against
any of the employees
who did report for duty, because the union
intervened in that dispute and an agreement was reached to work an
additional Saturday.
Jacobs claimed that AMCU also made
representations not to take disciplinary action in this instance.
Again this was not something
put to the applicant’s witnesses.
[43]
The strike over Saturday work was also
planned at Tautona mine, but AGA obtained an interdict to prevent the
strike on 12 April
and the interdict was complied with. In fact, the
interdict also prohibited similar action at Mponeng, but no attempt
was made
to extend the relief to apply to Moab Khotsong, even though
the local leadership at Moab Khotsong had already expressly
threatened
not to work on Saturday 20 April and that transport would
be disrupted. In the case of both Tautona and Mponeng a letter had
been
written by AGA’s attorneys similar to that written in the
case of Mponeng mine. As in the other instance, Mphahlele wrote
back
denying any plans to embark on unprotected strike action and
undertaking to investigate the matter and revert back. Mphahlele

agreed that given that the strikes at Mponeng and Tautona were called
off there was no reason to take any disciplinary action against

workers.
[44]
By 26 March, discussions were underway in
Potchefstroom with local AMCU leadership at Mponeng mine.  At
that meeting management
proposed to increase the Saturday allowance
by 20% to 12% of the day’s wage.
3
to 15 April
[45]
Around this time the Saturday work issue
was also being raised by the AMCU employee representatives, known as
‘the top seven’.
They had advised management as early as
3 April that members would not work on Saturdays from 20 April and
that buses would not
run on that day. This warning was recorded in an
email to Mr W van Heerden from Leeuw, viz:
“
Please
note that AMCU reported to me this morning that they will not be
working the in-Saturdays starting from Saturday 20 April.
And this
would affect the whole Vaal River region and the reason behind this
is that they have put a demand to Potch and are not
getting response.
AMCU mentioned that this is a notice to management
as they also mentioned that we need to make sure that busses are
stopped on the
day of the 20
th
of April.
I
have tried to hear from the AMCU leadership of what demand did they
put with Potch and they refused and informed that they will
share the
information with us when we arrange a meeting.
We
also need to follow up with the other shafts whether they have
received such a threat.
This
is a threat that we need to monitored and I suppose we will have to
have a meeting with them by next week when Willie back”
The
reference to ‘Willie’ is a reference to Mr V van Heerden
(‘van Heerden’). The email was addressed to
Mr R Ryneke,
an HR manager reporting to van Heerden. Van Heerden saw the email and
was surprised as there never had been issues
with Saturday work
[46]
In a letter dated 5 April, Mr M Madondo,
the general manager of Moab Khotsong (‘Madondo’)
addressed to the chairperson
of AMCU at the mine read:
“”
RE
AMCU THREATS
We
are seriously concerned about the threats that are made by your
organisation to disrupt the shift of the 20
th
of April in
that members will not be coming to work.
Please
note that working of Saturdays is part of an employee’s
conditions of employment and regulated in terms of a padded

agreements. Any collective unilateral withdrawal is tantamount to
strike action and we reserve our rights.
I
fully rely on your co-operation and support to ensure that we
establish a good “platform” for future growth that will

benefit us all.”
(
sic
)
[47]
Jacobs was aware of this letter at the
time. Van Heerden said it was received by representatives of the top
seven without comment
and they did not attempt to engage him on its
contents.. However, there was no attempt by the company to
communicate this to the
national office of the union, even though
Mphahlele testified that AGA knew
that any strike action by AMCU
members needed the sanction of head office after following proper
consultations with members and
the necessary procedures for
conducting a protected strike. The company also took no steps to
approach the court for an interdict
prior to the anticipated stoppage
on 20 April nor were any additional security precautions taken though
Magakwe was of the view
that police presence on 19 April would have
unnecessarily aggravated the situation at that stage.
[48]
On Sunday, 7 April 2013, Nkalitshana
specifically warned employees against striking on the Saturday shift
during the mass meeting
held at the Oppenheimer stadium, situated on
the West Vaal premises a few kilometres from the hostel. In his
answering affidavit
opposing a cost order against the union in
respect of the interdict, Gama specifically noted that employees at
the meeting had
indicated they were not going to work on Saturdays.
He also advised them to await feedback from the meeting that was
scheduled
with management on the following day. According to Nangu,
Nkalitshana also cautioned members against unprotected strike action
at the meeting on 8 April 2013. Van Heerden heard about the meeting
and that there was a call for members not to work on Saturdays
[49]
On Monday, 8 April 2013, high-level meeting
was held between AGA and AMCU representatives from the West Wits
region, as well as
Nkalitshana and Nthuli, at which the proposals for
increasing the allowance for Saturday work were discussed. Jacobs
claimed that
Moab Khotsong leadership was supposed to attend the
meeting but no transport was arranged for them, a point never raised
with the
applicant’s witnesses. The minute does refer to a
general complaint that transport was not arranged for ‘the AMCU
delegates’
but makes no reference to Moab Khotsong delegates as
such.
[50]
According to Motloi, emotions were running
high at that meeting, a point confirmed by Nangu. Jacobs was among
the management representatives
present at the meeting. According to
Nangu, the AMCU representatives advised that workers would not work
on Saturday 20 April at
Mponeng and Tautona mines and Jacobs became
angry and left the meeting at that point. In his affidavit
Nkalitshana denied that
the threat was made to withhold labour on
Saturday shifts unless the demands were met. Rather, he claimed that
he had emphasised
that the issue of Saturday work was a burning issue
and there had been no progress on the matter. He was concerned that
if the
company continued dragging its feet in the negotiations,
employees might go out on an unprotected strike on their own accord.
However,
the minute of the meeting reflected that:
“
AMCU
stated that the agreement in place is with NUM and is not binding.
AMCU has 70% membership in the West Wits. AMCU also indicated
that
their members will not work Saturdays until the matter has been
attended to.
Management
noted the threat to withdraw from Saturday work and indicate that
legal advice will be sought and that legal action would
be taken if
AMCU continues with the threat”
Jacobs
claimed he understood that the threat by AMCU referred to the whole
business despite it being prefaced by the reference to
AMCU’s
majority status in the West Wits region.
[51]
Following the meeting, in an email on 08
April to Naidoo, Nangu tabled demands from the AMCU Tautona branch in
respect of Saturday
work  and  requested another meeting to
discuss it with management, viz:
“
We
as AMCU leadership, we have demanding a production shift of 15% in
Saturday. It is a resolution that has been taken by AMCU leadership

at the West Wits region. And also we would like you to give us an
agreement on hours of work and working arrangements, because
we
believe that the agreement that you had is being expired.”
Once
again, Jacobs interpreted this to be a clear indication of a
withdrawal from Saturday work in the South African region of AGA.
[52]
Nangu related that the mood of local
leadership was hostile to the advice of the National organiser,
Nkalitshana, which was
that the matter should be processed
through the CCMA and they should not take action. Mphahlele said that
AMCU leadership had expected
the members to heed national
leadership’s call not to embark on unprotected strike action.
[53]
Jacobs claimed that he spoke to Mphahlele
on 9 April to express Management’s concern about the ‘general’
threat
of strike action and calling on him to intervene. Mphahlele
undertook to investigate and revert to him but indicated that
Saturday
work was a problem for AMCU because it was not a party to
the agreements governing Saturday work. Jacobs claimed that Mphahlele

did not revert to him.
[54]
On 10 April, a letter from AGA’s
attorneys very similar to the one issued in March was sent to AMCU in
relation to anticipated
action at Tautona and Mponeng. The letter
also sought an undertaking in writing from the union to be sent by
16H00 on 10 April
2013 confirming that labour would not be withheld.
[55]
As with the earlier incident at Mponeng
mine, Mphahlele responded in kind with a similar letter. He also
agreed that Jacobs did
phone him when there were problems and but he
could not recall exactly what was discussed when he was phoned about
the incidents
at Tautona and Mponeng mines. He confirmed that the
company had his number, and that of the AMCU President and Treasurer
as well
as their email addresses. He did not dispute that Jacobs
could have spoken to him on 9 and 10 April about averting the strike
over
Saturday work at Tautona and Mponeng mines. However, he could
not recall if Jacobs had said anything on those occasions about what

was happening at Moab Khotsong mine. Mphahlele said that the union
expected that on important issues like the one giving rise to
this
trial management ought not to simply have dealt with the local
leadership consisting of the top seven, but should have involved
the
national leadership of the union as well. Whether this did happen was
canvassed further after Jacobs claimed in his evidence
that he had
spoken to Mphahlele on 16 April about the unfolding situation at Moab
Khotsong. This is discussed elsewhere.
[56]
Mphahlele stated that the union’s
approach to strike interdicts, which it adopted a long time ago, was
that if members embarked
on an unprotected strike the union would not
defend it, but would try and find a solution with the employer to end
the impasse.
In his initial evidence in chief, Mphahlele said that
AMCU did not receive a similar request or notice of an interdict in
respect
of Moab Khotsong: “… It was just a dark page, we
did not receive anything.” He further said that if AGA had
issued ultimatums and contacted him about an alleged illegal strike
at Moab Khotsong, he would have called Jacobs and the relevant

management structures at the mine to see if they could discuss the
issue and assist.
[57]
On 11 April there was an AMCU meeting held
at the Itireleng hostel at 16h00. According to van Heerden
approximately 220 individuals
attended and one of the issues
discussed was that workers should not work on Saturdays.
[58]
On 12 April, AGA obtained an interim
interdict prohibiting the impending strike action at Mponeng and
Tautona mines pending the
outcome of a dispute over the
interpretation and application of the Saturday work agreements. Once
Nangu became aware of the order,
he obtained a loudhailer and warned
workers to report for duty on the Saturday shifts. When asked to
explain why he did that, he
answered:
“
Reason
being: what I noticed that there was a labour court interdict, labour
court interdict. And the letter of Jeff Mphahlela I
did read it on
the day. Then I realised that if ever I can just leave the workers
not to report on duty they can be on trouble.
Let me tell them to go
and clock in.”
[59]
A little further on in the
cross-examination the following exchange occurs:
“
So,
in the face of the interjection and in the face of this threat from
Ms Hart you did the right thing by getting your members
back to
work.       I realised that it is the right
thing to get the members back to work as per court
interdict.”
[60]
AGA contended that precisely because the
strike was averted, there was no need to take any action against
workers, which was completely
different from the situation at Moab
Khotsong where the local AMCU leadership did not call off the strike.
[61]
On the issue of the attorneys’
letters sent to AMCU head office in respect of Tautona and Mponeng,
Jacobs conceded that one
of the considerations in sending the letter
was the perceived disjuncture between local and national leadership
on the Saturday
work issue. Jacobs attempted to explain that the
reason this course of action was not followed when the same
dislocation presented
itself at Moab Khotsong was because AGA had got
the position of the national union at the meeting on 8 April and he
had discussions
with Mphahlele on the 10
th
and 12
th
of April, coupled with the fact that the course of action they had
taken at the other mines was clear. When tested on the fact
that
those conversations related to Mponeng and Tautona and that Moab
Khotsong was not mentioned, Jacobs trying to explain that
they took
place in the context of a concerted effort to engage the union
generally about the issues of Saturday work. However,
he did concede
that the letters in the case of Tautona and Mponeng had been
instrumental in stopping those strikes.
[62]
Jacobs was also challenged on AGA’s
version that it was uncertain if anything was likely to happen
because there was conflicting
information about whether action could
be expected on 19 and 20 April. The factors indicating that it strike
action could reasonably
be expected were , amongst other things: the
threat made on 3 April; the AMCU  mass meeting held at the
hostel at 16H00 on
11 April at which one of the issues discussed with
members was that workers would not work on Saturdays;  the top
seven’s
refusal to discuss the Saturday work issue when
management raised it at the meeting on 18 April; the briefing issued
by Madondo,
which was announced repeatedly over three days, and the
fact that AMCU had made another request for a meeting at the
residence
on 19 April.
On
15 April a meeting took place between Moab Khotsong management and
AMCU local leadership at the mine comprising the ‘top
seven’.
No regional or AMCU representatives were present, unlike the meetings
at the West Wits region. Management representatives
included Madondo
and van Heerden. According to Jacobs, the report he received of the
meeting was that AMCU leadership was not willing
to discuss the
Saturday work issue with management.
16
April 2013
[63]
On 16, 17 and 18 April 2013, the company
used the assistant communications officer, Mr I Mokhoke, ironically
nicknamed ‘the
DJ’ to make repeated announcements on all
shifts about management’s concerns about a possible boycott of
Saturday work.
Mokokhe explained that the standard procedure was for
management to issue a brief to him by email and he would translate
it if necessary. He would then type
and print it. He testified that the PA system was next to the lamp
room alongside the shaft
and there were speakers in the walkway and
the change room. He would repeat the announcement every ten minutes
and in the case
of important notices would do that over two days. In
this instance, the script he read from stated, amongst other things:
““
It
came to management’s attention that AMCU is not in favour of
working the Saturday shifts as from Saturday, 20 April 2013.”
He
went on to announce that:
“
This
is a serious concern to all of us, as Saturdays are part of our
employees’ conditions of employment and regulated in
terms of
current agreements.”
It
went on to say:
“
Any
collective unilateral withdrawal is similar to strike action and
Management reserved its rights to take the necessary action
when
people do not adhere to existing agreements.
I
fully rely on your co-operation and support to ensure that we work
together on this and other matters in order to build a future
that is
to the benefit of all employees and our organisation ”
Mokhoke
added his own personal flourish to the briefing mentioned above by
using a colloquial Sesotho expression that workers who
did not come
to work on Saturday would ‘smell like skunks’.
[64]
Van Heerden said that the intention of the
brief was to remind the workers about the agreements on Saturday,that
they were binding
and should be complied with. Although he was asked
if the briefing was prompted by the threat made at the meeting of 3
April, he
said it was the discussions with AMCU local leadership the
previous day which had prompted the issuing of the brief.
Mphahlele
conceded that Management at Moab Khotsong had been proactive in
communicating with AMCU members at the mine, but he nonetheless

believed that those issues were not dealt with the national office of
the union, as had been the case at Mponeng and Tautona. Jacobs
was of
the view that even though an ultimatum had not been communicated to
workers on 19 and 20 April, the briefing issued by the
mine earlier
in the week pre-empted the need for doing so.
[65]
In the case of Moab Khotsong, there was no
legal action launched prior to the anticipated strike, nor was there
any communication
from AGA’s attorneys to AMCU similar to that
in the case of the other mines on 15 March and 10 April.
[66]
Jacobs testified that AGA had decided to
follow a different approach in dealing with the situation at Moab
Khotsong. He distinguished
the situation from Mponeng on the basis
that in that instance there had been interaction between AGA’s
attorneys and the
national office on the day of the strike, whereas
at Moab Khotsong they had a number of days when they saw that the
matter was
looming. They requested AMCU leadership, with whom it was
building a relationship,
to
intervene as it believed there was
time for them to do so. Later, he elaborated that the mine had chosen
to go “a briefing
route” which they felt avoided the need
to issue ultimatums. The mine also believed that the union would have
understood
that an interdict was an option, but in this case they had
been given more time to intervene.
[67]
Under cross-examination, Jacobs was tested
on why Moab Khotsong was excluded from the interdict on 12 April
given that at that stage
an express threat of a strike had been
issued by local AMCU leadership at the mine. Although he tried to
partially explain that
this was a reflection of the different
approach adopted at Moab Khotsong, he could not dispute that his
discussions with Mphahlele
at that point had only specifically dealt
with Mponeng and Tautona. The other explanation he offered was that
the strike at those
two mines was imminent at the time the interdict
was brought. It still does not explain why a similar interdict was
not brought
at Moab Khotsong when the strike was imminent there,
rather than after the fact.
[68]
When Jacobs gave his evidence in chief he
testified that he phoned Mphahlele on Tuesday, 16 April 2013. When
Mphahlele was cross-examined,
this potentially critical communication
was not put to him, nor had it been pleaded even after the company
had amended its statement
of response. In his evidence in chief
Mphahlele said that to the best of his recollection  the only
time that he became aware
that action was being taken against AMCU
members at Moab Khotsong was when members were already dismissed.
[69]
Jacobs claimed that when he had spoken to
Mphahlele on 16 April he had expressed AGA’s concern about the
threats to boycott
Saturday work and that he had reminded him of the
legal action taken at the other two mines in respect of similar
threats. He further
claimed that he had appealed to Mphahlele to
intervene so that AGA did not have to follow the same route and
expressed AGA’s
willingness to engage with AMCU on the issue.
He also said that he conveyed the ramifications of strike action for
the union and
its members, though he expressed this in the vaguest
terms. Understandably, because this alleged conversation of 16 April
had not
been put to Mphahlele, the applicants contended this was
simply an afterthought by Jacobs and a fabrication. Jacobs could not
offer
an explanation why this conversation was not mentioned even
when the company sought leave to withdraw its admission there had
been
no contact with any union official to discuss the course of
action it intended taking. He also had no explanation why the company

did not seek an admission from the union that this conversation took
place at the same time it requested other admissions from
the union
about what took place on 16 April.
[70]
Subsequently, AGA successfully applied to
reopen its case to deal with this issue by recalling Mphahlele.
[71]
When AGA reopened its case, Jacobs
introduced fresh evidence of an alleged email sent to Ms M Hart, the
respondent’s attorney
(‘Hart’),on the same date as
the conversation, advising her of the set down of the CCMA dispute
concerning the interpretation
and application of the collective
agreements regulating Saturday work. Jacobs also recorded in that
email that he had a ‘telecon’
with the AMCU general
secretary that morning “… to indicate that I will
formally invite them to an engagement process
regarding
Saturday working arrangements.”
Mphahlele could not recall the content of the discussion but
contended that if Jacobs had
indeed asked him to intervene, then he
would have as he did in the other disputes and the fact that he did
not intervene meant
that Jacobs could not have made such a request.
Mphahlele did recall that there had been a
telephone conversation with Jacobs concerning a formal engagement
with AMCU about the
Saturday working arrangements but only in general
terms. He was more insistent that he could not recall one dealing
with the specific
situation at Moab Khotsong. He agreed it would have
been a good time for Jacobs to raise the issue with him, but was
confident
that if he had done so, the union might have done something
about it. He could not understand why the union would have reacted
differently to the way it had acted at Mponeng and Tautona if Jacobs
had communicated as clearly with him about Moab Khotsong.

Though he could not recall the contents of that conversation he was
emphatic that he did not recall any discussion of the situation
at
Moab Khotsong and  would have remembered it if Jacobs had told
him that workers at Moab Khotsong were planning to go on
strike. If
he had told him that on 16 April he would have gone to Moab Khotsong
the next day
[72]
Unlike the pattern of interactions between
Jacobs and the AMCU national office that characterised the dealings
in respect of the
Saturday work issue at Tautona and Mponeng, there
was no letter sent by AGA’s attorneys putting the union on
terms and threatening
legal action if an undertaking was not given.
When he was cross-examined after the company had re-opened its case
and after Mphahlele
had already been questioned for the second time,
Jacobs added a new dimension to his previous testimony. He now
claimed not only
that he had discussed the situation at Moab Khotsong
with Mphahlele and the latter said he would investigate and revert to
him.
This was not canvassed with Mphahlele at any stage.
18
April 2013
[73]
On 18 April 2013 at 08h30 a meeting was
held between Moab Khotsong management and the top seven, which only
ended at 14H30. On this
occasion, Madondo was not present. A lengthy
discussion on a whole host of issues ensued, but it was only right at
the end of the
meeting that the following brief entry relating to
Saturday work appears:
““
Willie
[van Heerden]
requested frankness about the
stance on Saturday work. He states that if it makes the committee
uneasy to discuss the issue, he
apologises. However, he needs to
understand the issue. AMCU replies that the Saturday work is not on
the agenda and that there
is unfortunately no time. Willie states
that he takes it that they are not prepared to talk about it”
Van
Heerden said he was trying to approach the leadership in a
non-confrontational way and he was trying to set the scene to get

their response. He was prepared to discuss the issue till late if
necessary and was disappointed by their response. Nonetheless
he
claimed he did not get the impression the action previously
threatened on 3 April would occur, but characterised it as a ’50-50’

situation. Had he thought they would proceed he would have raised it
with his superiors and asked them to take it up with the union
at at
national level. He did report to Jacobs in any event that there was a
likelihood of a strike. Jacobs claimed that based on
this report,
which he received, , “it was anyone’s guess at the time”
whether that was an indication that the
workers would embark on
action. He also claimed that given his discussions with Mphahlele,
the action they had taken at Tautona
and Mponeng the previous week,
and the security reports they had received did not lend themselves to
suggest any action was imminent,
but on the other hand he said it was
“conflictual” whether there would be action or not. It
was only the following
day at around 18H00 that he received a call
that buses were being prevented from transporting workers and there
would be no night
shift. Van Heerden felt that meeting was the first
he had had with the AMCU leadership where he felt he could start
building a
relationship with the group, but was unsure if they would
“really go ahead with their intention and threat not to work”

on Saturday and he reported that for the second occasion they would
not discuss the issue to Jacobs.
[74]
On the same day a Mining notice (no 003171)
was issued by the Inspector of Mines
terms
of Section 54(1)(a) and (b) of the Mine Health and Safety Act, 1996
(‘the section 54 notice’)
because
certain dangerous occurrences, practices and/or conditions had been
observed by him at the Moab Khotsong Mine. Madondo testified
that in
2012 there were nine stoppages on account of such notices being
issued by Mine Inspectors and 13 in 2013. What had given
rise to the
notice was a fall of ground on 17 April at 92 level of the mine which
had resulted in a reportable injury being sustained.
En route
to the scene of the accident a caboose on which a train guard sits
was derailed by a stone on a track switch and the Inspector
ended his
underground visit at that point and conducted an audit of various
safety practices followed underground.
[75]
Notable features of the section 54 notice
stated that:
75.1
The section 54 notice applied to “
ALL
”
sections of the Moab Khotsong Mine;
75.2
The Inspector of Mines scored the “Overall
Outcome of Risk Analysis” as an “
8
”
under section B of the section 54 notice under the heading “Summary
of Risk Analysis”.  In terms of the
section 54 notice, an
overall score between 7 and 16 is “applicable to
all
workings
on a mine”;
75.3
The instructions issued by the Inspector of
Mines to the Moab Khotsong Mine under section C of the section 54
notice, were that:
“
1.
Competent “A” persons to be retrained and re-assessed in
the correct procedures of declaring
work places safe.
(NB:-
Crews to be removed from the working places to a safe place.
2.
Miners, Shiftbosses and Mineoverseer to be re-trained and re-assessed
in the over inspection of
the safe declaration book.
3.
Rail Bound Equipment to be halted until investigations, remedial
actions and presentations made
to the Principal Inspector.
The
employer is further instructed to jointly with member(s) of health
and safety committee or unions; fix the deviation(s); conduct

comprehensive audit for similar deviation(s); investigate reasons for
system failures and institute an action plan to prevent further

recurrences of system failures.
This
instruction shall remain in force until such time that the employer
has complied with the instructions and presentations made
to the
offices of the principal inspector of mines by the said employer and
the members of health and safety committee or unions”;
[76]
The mine, supported by both AMCU, NUM and
UASA safety representatives, had sought to limit the Inspector’s
instruction to
a more limited investigative scope in terms of s 55 of
the Mine Safety Act relating to the derailment incident but was
initially
unsuccessful. On 18 April 2013 at 17h00, Madondo issued
what is known as a “Red Note” to all employees, in terms
of
which
inter alia “all crews
[were] to be removed from
working
places
to a safe place”
and “
for
this reason all employees must proceed to their respective waiting
places, conduct safety meeting and wait for further instructions
from
their supervisors.
No
person will be allowed to enter his working place except for
essential services
;”
Supervisory staff were directed to report
for training. During the course of 2012, apparently 12 such notices
were issued and the
instructions in the Red Note of 18 April 2013
were fairly typical. It was also not disputed that provided workers
reported to their
waiting places or for training they would be paid.
Jacobs testified that the night shift on that Thursday and morning
shift the
following day reported for duty as usual.
[77]
According to Madondo, the Red Note did not
apply to employees involved in equipment maintenance, construction
and other activities
but the vast majority of the applicants were
involved in the physical mining activities. However he testified that
the crews were
still required to attend to remedial operations to
deal with the rail conditions identified in the note, which would
involve cleaning
and loading mud in the haulages and particularly in
the cross-cuts into specially arranged bags to make the tracks safe.
If the
teams did not report for work, the start-up would be delayed
by the need to take the remedial actions. He contended that this type

of work was contemplated by the terms of the s 54 notice which
mentions remedial action being taken, fixing deviations, and
employees
waiting for further instructions. The other purpose served
by having all the teams at the waiting places is that they could
immediately
be engaged in other work if the s 54 notice was lifted
because they could be contacted by phone.
[78]
The mine and the unions also made further
representations that day to the Principal Inspector of Mines; in
respect of the mine.
[79]
Neither the existence of this notice nor
the effect it had on normal operations of the mine was disclosed in
the founding affidavit
supporting AGA’s interdict application,
so the court considering the interim application on 23 April 2015 had
no inkling
of this obviously complicating factor affecting the very
issue of whether a strike had occurred on 20 April 2015, which ought
to
have been disclosed by AGA.
[80]
AGA contended that this did not mean the
mine was shut down completely. Mphahlele’s response to this
suggestion was that once
the individuals identified for retraining in
the notice were not at the workplace, the mine could not function.
Although this was
not put to Mphahlele, Jacobs claimed that there
would be supervisory personnel available because training was done on
a staggered
basis. Further, the requirement that all teams working a
shift had to be removed to a safe place meant that “everybody
was
off.” When this issue was canvassed with Mphahlele under
cross-examination I asked AGA’s counsel,
Mr
Lennox
if it was the mine’s
position that people were supposed to be doing their normal duties
underground on 20 April, and he clarified
that it was not suggested
that they would be performing normal duties underground. When pressed
for an answer whether the mine
was closed or shut down by the notice,
Mphahlele responded somewhat exasperatedly by making an analogy with
the court:
“
How
can you operate in this room, I am not asking a question, I am trying
to illustrate my answer. If all of us here including the
honourable
judge had to evacuate this rule, can this room be functional? Can the
matter that is said to be conducted in this room
still continue? No,
there is nobody in here.”
[81]
Counsel was advised to put to Mphahlele the
specific facts, which formed the basis of AGA’s proposition
that the mine was
not shut down. Mphahlele was then cross-examined on
the significance of the instruction in the general manager’s
Red Note
to employees to go to their waiting places, conduct safety
meetings and wait for further instructions from their supervisors.
Mphahlele
accepted that it was a lawful instruction to tell them to
wait somewhere while safety talks were conducted, but this did not
detract
from the fact that the mine would be shut down. He denied
that if workers did not go to the working places they were
withholding
their labour.
[82]
Mphahlele was also questioned about certain
correspondence issued by Madondo in the week after the shutdown in
which he plainly
believed that workers had been unfairly dismissed
for not going to work on a Saturday when they were not ordinarily
supposed to
work, in which he made no mention of the section 54
notice. What is apparent from a media release issued by AMCU on 9 May
2013
is that the union was aware at that stage that a section 54
notice had been issued. In the narration of events leading to the
dismissal
of the applicants, the press statement contained the
following passage:
“
Based
on the above the mine was supposed to be non-operational. This
alleged unprotected industrial action could have been converted

should the mine have communicated with the workers at the mine’s
under section 54 hence there should have been no Saturday
working
in.”
Mphahlele
confirmed that these communications reflected what AMCU perceived to
be the situation at the time. In trying to explain
why the union did
not oppose the confirmation of the temporary interdict on 7 June,
Mphahlele said that the union had no objection
to the prohibition of
violence and it would have been foolish to oppose that.
19
April 2013
[83]
On the morning of 19 April, when employees,
like Mr K Ndlovu, a team leader (‘Ndlovu’), arrived for
the day shift they
learnt that the previous day the Department of
Minerals and Resources (‘DMR’)
had
issued a notice in terms of section 54 of the Act.  In his case
he was advised to go to the HR manager who then told him
to report
for training at the gateway training centre. Team leaders and other
supervisory Mine personnel, known as ‘Competent
A’ staff,
were required to undergo refresher training on 19 and 20 April 2013
whilst the red notice was in operation.
[84]
From Ndlovu’s evidence it appears
that the gang registers of all miners who would have been on duty on
Friday, were marked
with the letter ’B’
.
[85]
On Friday, 19 April 2013, AMCU called an
unauthorised meeting at approximately 16:00 at the Itterileng
residence. A request
for a meeting that day had been turned down by
management because there was no venue available according to van
Heerden. Mr G Tiyo
(‘Tiyo’), a winch operator, claimed he
was at work when he was told by NUM shop stewards to stop working and
go to
the Oppenheimer Stadium to attend a meeting because Marikana
‘people’ had got an increase so they should demand more

money too. Somewhat confusingly he also claimed he went to the
training centre but had to obtain a visitor’s permit from
HR to
gain access to the training.
[86]
At around 16H30, Mr A Leeuw (‘Leeuw’),
a senior human resources officer said he received a call from the
branch secretary
of the NUM, Mr H Sosikela saying that AMCU had held
a mass meeting at the hostel and AMCU members had gathered at the bus
terminus
and were intimidating employees who wish to go to work.
During the course of the trial video footage of the bus terminal
outside
the hostel was viewed. What the video showed apparently was a
bus waiting from about 16h09 at the terminal. Around 16h53 people

start streaming from the hostel and a group of approximately 50 or
more head for the terminus and gather together next to the passenger

entrance of the bus. Rohr identified certain of them as AMCU members,
but could not say that none of them were NUM members. However,
in his
experience, given the rivalry between the two unions it was unlikely
members of one union would associate themselves with
a strike called
by the other unless it was a protected strike.
[87]
Mr D Magakwe, District Security Manager for
Vaal River Anglo Gold Ashanti (‘Magakwe’) went to the
residence after hearing
about the gathering at the bus terminal at
about 17h00. He saw the group toyi-toying near the bus and addressed
them using the
loudhailer of the security vehicle. He told them what
they were doing was unlawful and he would arrange for them to speak
to a
manager if they wanted to. The response of the group was that
they would not desist because they wanted more money for working on

Saturdays. He confirmed that members of the top seven were amongst
the group at the scene. He claimed that he had spoken to the
driver
of the bus at the bus depot after he had returned from the terminal
and was told he was scared sitting in the bus because
people were
threatening him. Oddly, he was unaware that anything might have been
brewing in relation to the Saturday work issue
until he saw the
briefing issued by Madondo a day or two before. He conceded that the
driver did not leave because there was a
security and police
presence.
[88]
Other footage from another camera shows a
few people raising sticks as they dance. No one boarded the bus and
after about 10 more
minutes it left. Later some of the group moved to
dance in the street entrance to the transport terminal. Still later
at about
18H20 AMCU can still be seen dancing in the loading platform
area of the terminal. Intermittently, people can be seen boarding
taxis, but no bus appears. Rohr confirmed that no buses entered the
terminal after that he said that drivers were scared as they
believed
they were in danger due to the group that did not want anyone to
board a bus. Mphahlele disputed that there was anything
threatening
about the situation portrayed on the video which meant he showed
people dancing around under the cover of umbrellas
on what was a
rainy day. The bus  eventually
drove off peacefully and there was
no suggestion of any disturbance or disruption.
[89]
Various photos showing individuals on 19
April some wearing balaclavas and some with sticks or carrying stones
in the vicinity of
the entrance to the transport hub near the hostel
were also introduced in evidence. Under further cross-examination
Mphahlele did
concede after viewing photographs of the episode that
some members of the crowd were carrying sticks, but argued that, that
was
not necessarily indicative of them being in a fighting mood. He
also queried why, if indeed the situation was threatening, the
company did not station security personnel at the bus terminal.
[90]
Evidence was also given by a former bus
driver, Mr J Pule (‘Pule’) of what he witnessed that
afternoon from the transport
depot situated near to the transport
terminus at the hostel. He was waiting at the depot after completing
the transport of afternoon
shift workers from the hostel to the shaft
around midday. It transpired that his last trip at around 17h00 had
been to collect
workers coming back from the shaft that afternoon.
Before he knocked off work at around 18H30 he saw people carrying
knobkerrie’s,
sticks and irons singing at the bus terminus. He
claimed that they were singing in Xhosa that “tomorrow is
Saturday we are
not going to work” and adding that they were
going to “kill all the drivers”. He claimed that he had
reported
this to his supervisor but could not explain why this report
was not mentioned in the company’s synopsis of events, nor why

it was not mentioned in an affidavit in support of the interim
interdict dealing with events at the transport terminus. He also
did
not address himself to the question put to him why the driver of the
bus waiting at the terminus would have waited so long
if such threats
were being made to him. He claimed not to have heard Mr Magakwe
addressing the crowd over the loudhailer either.
He had experience of
the events during the gold industry strike of 2012 in which stones
had been thrown at buses and one of his
colleagues had to be taken to
hospital after being injured by a stone
.
[91]
In any event, Jacobs testified that the
company had decided to stop the buses after seeing the events which
unfolded late that afternoon
at the bus terminal. The decision was
also influenced by what had happened during the strike in 2012 when
buses had been stoned
and there was an attempt to set a bus alight.
He was dismissive of the suggestion that the decision was influenced
by the effect
of the section 54 notice on operations.
[92]
Jacobs claimed that he made two calls to
Mphahlele in the evening of 19 April, when he learnt of the strike.
Mphahlele did not take
either of the calls, but Jacobs said that he
left a detailed voice message in which he reiterated AGA’s
concerns, referred
to their previous discussions and again requested
Mphahlele to call him back and intervene in the matter.
[93]
According to Leeuw the NUM general
secretary, Mr F Baleni, had sent an SMS to Jacobs advising him that
NUM members would not lose
their Saturday earnings on account of an
unprotected strike by AMCU members.
[94]
Jacobs claimed that once he learnt of the
events that evening he made “about two calls” to
Mphahlele in the space of
an hour which he did not take. In one he
left a detailed message about their concerns and the previous
discussions and again requested
him to call him back and intervene in
the matter. Mphahlele did not revert to him.
20
April 2013
[95]
Leeuw said he was called again at just
after 04H00 by Sosikela who complained that NUM members were being
assaulted on their way
to work. An ambulance had to be arranged to
hospitalise one NUM member who had been badly assaulted.
[96]
Video footage was shown of the entrance to
the helipad area taken from around 06H00 that morning. Small groups
of people can be
seen entering from time to time. Rohr testified that
these were workers who had responded to the announcements made from
security
vehicles advising people that they could report to the
helipad. Ms M Bezuidenhout, a Security Superintendent at the Services
Department
at Anglo Gold Ashanti Vaal River (‘Bezuidenhout’)
was posted at the helipad that morning to monitor those workers who

reported there, who numbered 207 in all by the time she  left at
14h00. The cut-off time for reporting there was 07h30 and
no-one
reported to the helipad after that. Bezuidenhout also confirmed that
the facility of reporting to the helipad was not available
for the
night shift workers on the previous evening. She did not have an
explanation why two AMCU members who had reported to the
helipad and
whose details were captured on the list had nonetheless been
dismissed. It is common cause however that they were reinstated
at an
early stage and withdrew their unfair dismissal claims.
[97]
Further footage of the loading platform at
around 07H43 shows a sizeable group of workers gathered at the
platform of which about
twenty
break away and head towards the
security complex and later shows them directed back to the hostel by
security personnel. A few of
them appeared to be carrying sticks. In
further footage around 08h00 the group can be seen returning to join
others still gathered
at the loading platform. An hour later, the
group is still gathered there, which Rohr testified was not normal
.
[98]
Madondo testified about a meeting held
mid-morning on 20 April at the mine with local NUM leadership. Leeuw
also attended the meeting
but did not give evidence on it. The
minutes of the meeting reflect NUM complaining about management’s
failure to act on
NUM’s previous warnings that AMCU was
rumoured to be planning to stop busses in support of their campaign
against the Saturday
working arrangements. The minute also reflects
that Madondo told the NUM representatives that he had met with one of
his security
personnel earlier in the week “…in relation
to security of our employees who will be reporting to work.”
Madondo
confirmed that he had spoken to his senior security officer
about the rumour and because they had previously experienced
incidents
of intimidation focussed on the busses in 2012, the mine
was very concerned. The representatives said that NUM members could
not
proceed to work and it was no fault of theirs.
[99]
A few of the applicant’s witnesses
testified that they had reported for work on Saturday, 20 April 2013
.
Makwekwe, a rock driller,
(‘Makwekwe’)
testified
that, on the Saturday, he clocked in at 04h29 and out at 12h03; that
he was told by his supervisor that they were not
going underground;
and that he spent the shift working on the surface, loading goods and
cleaning. Mr  Mzileni (‘Mzileni’),
who did not live
on the mine premises and either travelled directly to the mine or
travelled to the hostel and took the mine bus
to the shaft testified
that , he went to the mine on Saturday, but did not find many people
there because the mine was temporarily
closed by the DMR; and that he
clocked in and then went home. He did not find any transport at the
hostel and arranged for someone
to give him a lift to the shaft. His
clocking records showed that he clocked in at 05H56 and out at 06h42.
He went to the shaft
but did not go underground to work. At the end
of his testimony, the company tendered to reinstate him with
retrospective effect
because he had gone to work and had attended a
disciplinary enquiry and advanced his defence. The tender was
accepted. Another
witness
‘WA1’
who testified in camera, said that on the Saturday, it did not
appear to him that the mine was operating as there were a
lot of
people outside at the dressing stations; that his shift was not
working because his clothes had not been washed and the
wheels of the
headgear were not moving; and that he had clocked in at 03h30 and out
at 04h30
.
Madondo said that the fact the headgear on the shaft might be
motionless did not mean the mine was not working and speculated that

W1 had arrived late for his shift, but W1 was never challenged on
this aspect of his evidence. Machonga could not comment on WA1’s

version as he was underground.W1 did agree that in terms of the Red
Note he was obliged to report for duty, as he in fact did.
Although
the company did not accept that he tendered this explanation at his
disciplinary enquiry or on appeal, it did accept that
he had reported
for work on nineteen and twenty April and had attended the
disciplinary proceedings. He also accepted a tender
of retrospective
reinstatement to the date of dismissal, which was made at the end of
his testimony.
[100]
Lebodi travelled by car with four other NUM
members from the town of Khuma some 20kms away to the
Itireleng residence to catch a bus. They arrived
early that morning at 04H00. There were no buses but there were
persons singing.
He claimed that the driver of the car he had
travelled in advised that they would travel to the shaft via the
hostel because there
had been a meeting the previous day and they
should attend a meeting at the hostel before going to work. They
would then board
buses for the shaft. When no buses had arrived by
06H00 he took his bag from the car and went home with one of the
other occupants.
The driver supposedly showed no interest in taking
them in his vehicle to the mine. He claimed ignorance of the meeting
of the
previous day and denied that AMCU members were at the
forefront of a campaign against Saturday work.
He
denied hearing anyone announcing on loudhailers at the Itireleng
residence that people who could not get to work could report
to the
helipad, or seeing anyone gathered there when he walked past. When
asked under cross-examination what efforts he made to
establish when
a bus would be coming he claimed that he had phoned a certain Samuel,
who was an assistant HR manager at the
shaft to find out what
was happening with the buses. Samuel told him he did not know what
was going on and would phone him back
but he never did
.
Lebodi further testified that he
went home by getting a lift in a taxi that was on its way to
Klerksdorp and there were no other
vehicles going to the shaft he
could have approached for a lift. As far as he was concerned the only
transport from the hostel
to the shaft was by bus and there was no
transport by taxi to the shaft. There was evidence on video footage
taken on 19 April
that taxis also came to the rank and Rohr testified
that they travelled to the business units and to the local
communities. Van
Heerden also claimed that a number of hostel
residents got to work and that miners got taxis or lifts with
friends. Although Lebodi
was challenged on the discrepancies between
his original account of what he told the chairperson at the appeal
hearing and his
later version in which he added the details of
travelling with other people to the hostel, essentially his version
was
that
he had gone to the hostel to get transport but none was available,
which was broadly consistent with the summary of the explanation
he
gave at his disciplinary enquiry that appears on the record of his
enquiry. .
[101]
At 06H45, the local NUM secretary had
reported to Leeuw that the mine had failed to provide security or
transport for NUM members.
When they arrived there were no buses. Mr
Mere (‘Mere’), who
stayed at the hostel, claimed that he went to wait with other workers
for a bus at the bus rank from
11h00 that morning but waited ‘long
after’ 12h00 for bus and eventually returned to the hostel when
none came. His
afternoon shift was due to start at 12h00. He claimed
to know nothing of any strike and was out of touch with what
transpired at
union meetings because of his shift pattern which meant
that fellow hostel dwellers were asleep when he returned from work
and
had gone to work when he woke up. He claimed to be completely
ignorant of the warnings issued by the top seven to management about

what would happen that day, nor did he hear Mokokhe reading the
briefing on 16, 17 and 18 April. He also claimed to have heard

nothing about the AMCU mass meeting on 19 April when he returned to
the hostel at around 22h00 that night. He did concede that
the night
shift had not gone to work and when his bus arrived at the hostel,
they did not alight at the rank where there was a
group of people
gathered, but denied seeing them being armed with sticks or
knobkerries’, or wearing balaclavas. He simply
went about his
private business, without making any enquiries and went to sleep. He
was also oblivious to a raid by security personnel
looking for
weapons at the hostel which took place in the small hours of the
following morning. He also did not hear any announcements
being made
by security personnel using loudhailers to say that anyone unable to
get to the shaft on Saturday should report at the
helipad. The most
he would concede is that there were more people than usual at the
hostel that Saturday. He claimed to have waited
for the bus for the
night shift on Saturday, which never came and he did not get a taxi
because there were no taxi’s running
from the residence to the
shaft. At a certain stage during his testimony Mere was confronted
with a defence he apparently gave
to the chairperson of the appeal
hearing in which he had said that apart from there being no transport
he was afraid to go to work.
At this juncture the witness had
difficulty remembering what he said and asked for a brief adjournment
to recollect his thoughts.
After the adjournment, the allegation was
made that during the adjournment he had gone to the toilet and a
number of other AMCU
members were heard coaching him on what to say.
He denied this. When the court adjourned I specifically asked that
only Mere should
leave the court, but noticed that a number of other
persons in the public gallery also left. Later in the proceedings,
the Senior
Security Official Mr Molokela who had witnessed the
interference with Mere confirmed what had happened and his account
was not
effectively disputed.
[102]
Jacobs claimed that he phoned Mphahlele
again early on Saturday morning at about 07H00 and told him that
unprotected strike action
was under way, that there had been
violence, and requested him to intervene because the situation could
spiral out of control.
According to Jacobs he specifically asked
Mphahlele for a meeting that day to find a way to resolve the issues,
but Mphahlele was
non-committal and merely said that he was involved
in a church function, that it would be difficult to meet with him,
but he would
revert to him on a possible meeting. Mphahlele could not
recall if he was at church that morning, but if he had called him on
a
Sunday he would have been at church. He did not recall the
particular conversation referred to by Jacobs. After failing to get
hold of Mphahlele during the course of the morning, Jacobs sent
Mphahlele the following SMS at 10h55:
“
Hi
Jeff, our earlier telcon. I will still want to meet with you
today/this morning and was stated in Jhb until you available. The

situation now need urgent intervention by you and the AMCU national
leadership. As indicated to you earlier one employee was hacked
by
AMCU members (investigations continuing), and AMCU members in our
hospitals/residences of drumming up support to block roads
and bridge
s, and threatening that employees at shafts will be dealt with today.
This situation has the potential to lead to widespread
violence and
unprotected strike action at mines in the Vaalriver, which in the
current economic conditions threatens the viability
of our mines.
Regards
Ian K Jacobs.”
[103]
An hour later, Mphahlele got back to Jacobs
and told him he was available for a meeting, but no arrangement was
made and the matter
was left on the basis that Jacobs would revert to
him. However, it was decided that since the shift had been lost
already, Mphahlele’s
involvement would not resolve anything. It
was at that stage Jacobs was then instructed to contact AGA’s
attorneys and consider
legal avenues going forward. From Mphahlele’s
own evidence, there is no suggestion that he took any other steps to
intervene
in the situation but his understanding was that the meeting
held at the country club was the result of the exchange he had with

Mphahlele. The original pleadings, it was common cause that
AGA made no contact with any AMCU trade union
official to discuss the course of action that it intended adopting in
relation to
the individual applicant’s conduct. During the
course of Mphahlele’s initial examination in chief, the
respondent alerted
the court to its intention to plead a different
version in an application to amend its response to withdraw its
original admission
that “…the company made no contact
with any AMCU trade union official to discuss the course of action
that it intended
adopting in relation to the individual applicant’s
conduct.” However, when Jacobs was re-examined
it was suggested that the original
admission, which the amendment sought to withdraw, had been confined
to an admission that there
were only no communications during 18 and
19 April and did not imply that there had been no communication prior
to those dates.
[104]
Pule said that when he arrived for his
shift at 14H30 on Saturday that people
were still singing like they had on
the previous day and no buses transported anyone by the time he
knocked-off at 20h30.
21
April
[105]
On 21 April 2013, a so-called “Green
Note” was issued by Madondo to the effect that the section 54
notice had been uplifted.
This was a result of further
representations made by the mine and unions to the Principal
Inspector of Mines. The company also
finalised its plans for the
forthcoming disciplinary enquiries in an HR meeting which started the
previous morning and continued
throughout Sunday. Van Heerden said
that the violence which ensued following the dismissal of the top
seven had no effect on the
planning of the enquiries.
23
April 2013
[106]
On Tuesday 23 April 2013, it was claimed
that AGA sent a letter to Mphahlele advising him of the company’s
intention to take
disciplinary steps against AMCU interim leaders at
Moab Khotsong relating to alleged participation in an unprotected
strike on
20 April, incitement of workers not to attend work on that
day and, incitement to violence. The letter invited Mphahlele to
discuss
the planned action with Jacobs. It made no mention of
disciplinary action against ordinary members arising from the events
of 20
April. Mphahlele said that at the time the union was in the
process of occupying new national offices and it might have been
received
but he had no recollection of seeing it then. Van Heerden
claimed he had given it to Madondo’s secretary to fax to AMCU
and
had seen it being faxed.
[107]
Madondo issued a general brief to all
employees about the events on Saturday in which, amongst other
things, he mentioned that:
107.1
employees had embarked on an unprotected
strike, which was in violation of established working arrangements at
the mine and a breach
of the conditions of employment;
107.2
there had been incidents of intimidation;
107.3
the company did not condone the violence
and was investigating the matter with the authorities;
107.4
thanking those employees who continue to
report for work, and
107.5
cautioning employees that “final
warnings issued following the previous unprotected strike in 2012 are
still in force.”
[108]
The same day a letter was also sent by AMCU
to Jacobs complaining of the dismissal of members, presumably a
reference to the top
seven, and apart from urging management to
reinstate the members, called for an urgent meeting between the
parties ‘to deal
with all matters of concern’. The
response from AGA’s attorneys sent on 24 April did not respond
to the proposal for
a meeting. Jacobs said he found it strange that
the union was asking for a meeting at that stage and made reference
to a passage
in the letter which referred to the union acting in
breach of the court order granted on 15 April in that members had
embarked
on unprotected strike action as threatened on Saturday 20
April.
[109]
The mine proceeded to dismiss the top seven
on the same day and Rohr confirmed the contents of certain video
footage apparently
showing the departure
of the leadership from the logistics
area of the Moab Khotsong shaft, which they had previously refused to
leave until the mine
sought the assistance of the SAPS. Later the
same afternoon, footage was shown of confrontation between people
gathered at the
loading platform and the SAPS, which included the
firing of a stun grenade and stone throwing.
[110]
On Tuesday 23 April 2013, AGA also brought
an application for interim relief under case number J
821/2013,
seeking amongst other things the following relief against AMCU
members at Moab Khotsong mine:
“
That
the withholding of labour on Saturday, 20 April 2013 at the
applicant’s Mponeng and Moab Khotsong Mines by the further

respondents, be declared to be an unprotected strike.
That
the first to further respondents are interdicted from withholding
labour or embarking upon an unprotected strike
”
[111]
A rule
nisi
in these terms was issued and on 7 June 2013, the rule was confirmed
by consent. A legal controversy exists around the status of
the
order. AGA contends that the applicants cannot dispute the finality
of the order as a declaration of the unprotected nature
or,
alternatively, are estopped from disputing the existence of an
unprotected strike on 20 April.
[112]
On the return day of the interdict on 7
June 2013, AMCU only opposed an adverse order of costs and did not
take issue with the substance
of the order. According to Mphahlele
the union’s main concern was avoiding a waste of money and
there was no time to take
advice on the issue, though he conceded
under cross-examination that the person who had been dealing with
members at Moab Khotsong
was Nkalitshana. Moreover, it was only in
December 2014 that the union consulted with members and, by
implication, obtained a fuller
picture of events. In retrospect, in
the light of the fact that operations at Moab Khotsong had ceased
owing to the section 54
notice, he took issue with the allegations in
the founding affidavit in support of a claim of irreparable harm that
the two mines
would have each lost 25 kg of gold production for each
shift lost.
24
and 25 April 2013
[113]
On Monday and Tuesday, following the
operational shut down while the red notice was in force, workers
reported for work and were
allowed access to the mine as normal.
[114]
Having dismissed the top seven on 23 April,
the company obtained an interim interdict the following day
prohibiting them from entering
the mine premises except to remove
their belongings and from continuing with acts of intimidation or
inciting workers to strike.
[115]
On Wednesday 24 April 2013, after obtaining
the interim declarator the day before, that AGA proceeded to convene
disciplinary enquiries,
without prior notice to AMCU. AGA maintained
it was under no obligation to do so because clause 4(2) of AGA’s
disciplinary
code only provides that it is necessary to advise the
union of growth disciplinary action when that action involves union
representatives,
office bearers and officials. Mphahlele testified
that the union never had time to represent the members and played no
role at
all in the enquiries. Despite defending the policy of not
advising the union of its intention to hold disciplinary enquiries
involving
the rest of the membership, Mphahlele was challenged on why
AMCU national structures did not send anyone to represent them. His

response was that the national organiser was barred from doing so.
[116]
It only emerged late in the proceedings
that workers who had reported for work on the night shift of 23 April
were also blocked
from working and were told that they should report
to the mine the next morning. Neither van Heerden nor Madondo could
say
that they would have known that the purpose of reporting would
have been to attend disciplinary enquiries, though van Heerden
believed
they would have learnt that when they reported at the mine
the next day.
[117]
The decision to proceed with the mass
disciplinary process was taken at the so-called control room of AGA
in Potchefstroom with
the input of all the senior HR management. The
expedited process adopted was influenced by concerns that if workers
were initially
suspended and then summonsed to disciplinary enquiries
a day or two later, it might have provoked a recurrence of the
underground
sit-ins that had taken place at other mines.
There
had also been incidents requiring the intervention of the SAPS and
threats had been made, amongst others, against van Heerden
when he
had summonsed the top seven to their disciplinary enquiries. The
situation was viewed as a crisis situation. Jacobs conceded
that as a
result of the way the proceedings were conducted workers had no
opportunity of obtaining advice from, or representation
by, AMCU. Van
Heerden testified that given events on 19 April, stone throwing which
took place after the dismissal of the top seven
and the threats made
to him, AGA felt the hearings should be held sooner rather than
later, before it spilled over into other business
units. For the same
reason the right to representation at the hearings was denied to
prevent the process being prolonged. However,
if there had been a
request by any member for representation by a friend or
representative they would have made provision for that.
[118]
The enquiries were held at a recreation
venue on the mine property known as Eagle’s Roost, situated on
the river running through
the property and a distance of a few
kilometres from the hostel. Employees were bussed to the venue when
they reported for duty
on that Wednesday.
[119]
Although AGA had evidently made extensive
arrangements for the conduct of the enquiries, which can be gathered
from the organisation
of the enquiry venue at Eagle’s roost,
employees only learnt of the enquiries on their arrival at work that
morning. Those
who were scheduled to appear before an enquiry could
not gain access to the mine when they attempted to clock in and the
word ’transfer’
appeared on the monitor when they did so.
The blocked individuals  were told by the DJ, who
addressed them through a
megaphone, that all workers who received the
‘transfer’ or ‘blocking’ code should board
the buses parked
at the shaft bus rank. Jacobs testified that
employees were blocked on the basis that they were AMCU members who
were rostered
to work a particular shift but did not attend. Those
individuals with valid explanations for not being at work and would
have an
opportunity to deal with that at the disciplinary hearing. He
conceded that in retrospect it would have been more convenient to
go
through the records to identify those on authorised leave of one kind
or another or on training, but they were trying to bring
a situation
under control and get those who should have been at work back to
work. Van Heerden said that it would have been a mammoth
and time
consuming task to audit all the different systems to acquire records
of an individual’s clocking history before
the enquiries took
place. He accepted that errors would result from such a process.
[120]
Van Heerden testified that he believed the
original list that was used as a basis for identifying persons absent
from work was drawn
up on Saturday 20 April and it was this list that
was used to identify those workers who should be blocked from
entering the mine
on Wednesday 24 April. The list only became
available around 10 February 2015 for the purposes of trial. The
record of some of
the persons who had presented medical certificates,
sick notes or other documents explaining their absence on Monday or
Tuesday
might not have been captured on the system so they still
would have been recorded on the list as absent without leave. The
chairpersons
of the enquiries did not have copies of the list and
would not have realised that certain individuals would already be
recorded
as having been off work on account of illness on the final
list that was used as the attendance register. Hence, they would have

been through the disciplinary process on the basis that the company
record simply showed they were absent from work, even though
the
reason for their absence would have been apparent from the final
list. Van Heerden admitted there had been mistakes, but where

management became aware of the mistakes, they were rectified.
[121]
Ndlovu claimed that he asked the DJ why
they had to get on the busses, but he only knew he had to tell them
to do so. According
to Ndlovu, the DJ did not read the script which
he had been given to use for his announcement, in which a brief
explanation was
given that the buses were there to transport workers
who allegedly participated in a strike on Saturday to explain why
they did
not come to work. Mokokhe said that he was asked to make the
announcement about the disciplinary enquiries and did so every ten

minutes at 07H00 the morning. Although he corrected himself and said
that he would have made the announcement more often than every
ten
minutes if a large number of people arriving, he could not say if it
was possible that someone would still have heard the announcement
if
they  had been ushered to the bus by security officers during
the interval between announcements.
[122]
Ndlovu said he waited with other workers
who had also been bussed to the venue from about 04h00 to 05h00,
which is when the enquiry
process commenced. Both
Ms M Gwadiso (‘Gwadiso’),
and Makwekwe’s evidence in this respect was similar. Tiyo
claimed to have caught a bus
at around 09h00. According to Ndlovu
prior to arriving at Eagle’s Roost nobody knew why they were
there. Makwekwe’s
evidence of the process by which he found
himself transported to the hearing venue on arriving at work was
essentially similar,
except that he claimed he was ushered onto the
bus by a security officer and had no recollection whatsoever of the
DJ making any
announcement. Gwadiso, who was on slick sick leave,
also testified that she was escorted by security officials to the
bus.
[123]
The company’s original version was
that buses only arrived at Eagle’s roost at 10H00 because
people had refused to get
on the buses. However, video footage
introduced during Rohr’s evidence showed enquiries in progress
by 08H30 that morning.
Photographs of the exterior of the venue also
appear to have been taken in early morning light. When van Heerden
testified he was
puzzled where the company version originated and his
recollection was that the busses must have left for Eagle’s
Roost early
at around 05H00. If he had told AGA’s lawyers that
the enquires started at 10h00 whereas it was about two hours earlier,
that was an error. Workers entered a hall at the venue in batches.
The hall had been partitioned by curtains with a number of tables
at
each of which three persons were seated. Joint enquiries of three or
four employees at a time were conducted by these panels.
According to
the company there were approximately 15 persons chairing the
hearings.
[124]
Essentially, workers were asked to explain
where they were on the previous Saturday. If they were unable to
explain why there had
not reported for duty they were advised that
they were dismissed but that they could appeal. It seems that in
cases such as that
of Ndlovu, who did not give an explanation but who
had no means of proving why he did not report for duty, they were
advised to
bring proof of the legitimate reason for being absent and
presented the following day at an appeal hearing. In his case it
seemed
that there was a superficial anomaly in his clocking record on
the Saturday because he had clocked in at the gateway centre but

appears to have clocked out at the Moab Khotsong mine sometime later
than he said he had left the training centre. This was somehow

misinterpreted resulting in him being singled out as being absent
from work. Makwekwe claimed that he was accused of not being
at work
and when he said he had been, he was accused of lying. It was
contended by the company it was improbable that if Ndlovu
and
Makwekwe had attended the hearing their defences would not have been
verified because a computer link had been established
between Eagle’s
roost and the company to verify claims like that of Ndlovu. It
further claimed that chairpersons of the enquiry
were specifically
instructed to make use of that facility by approaching van Heerden,
who was in charge of the process or a certain
Mr Carrigan. Van
Heerden said that another HR manager, Mr N Deetlefs, was also present
to deal with time and attendance queries.
Rohr conceded that it was
not necessary for an employee to produce proof of his attendance at
work if these records were available.
[125]
All those witnesses who were summonsed to
enquiries said the enquiries were very brief and over in a matter of
a few minutes. Steyn
said enquiries involving five or six people
would last about 20 minutes. They were advised that they were
dismissed. In every case,
even those who claimed that they were told
they were dismissed on account of their AMCU membership, were asked
why they were absent
on their Saturday shift. As van Heerden
characterised it, it was not necessary for the company to prove that
the worker was on
strike, it was on the basis of the employee’s
version that a decision was supposed to be made. Some, like Ndlovu,
claimed
that they had complained about the lack of opportunity to
prepare or to be represented. Some like Makwekwe, Gwadiso, Tiyo
alleged
they were told expressly that they were being dismissed
because of their AMCU membership. Others, like Ndlovu supposed that
was
the reason because they could not see any other. In Lebodi’s
case he believed that was the reason because NUM members who
were not
at work were not dismissed. Ndlovu was advised to bring proof of
attending the training, as was Tiyo. Tiyo claimed that
he obtained
confirmation that he
tried to attend the training on 20
April (he claimed the venue was closed when he got there and later
said he was not due to attend
training on that day anyway), but it
was torn up by a Mr M Steyn (‘Steyn’) when he presented
it to him even before
he was admitted to attend an enquiry, where the
same questions about his whereabouts were asked. Steyn was a human
resources manager
from Great Noligwa, who denied that he would have
had such a conversation with Tiyo in the course of his duties that
day, which
were to ensure the orderly movement of people at the
venue, and that it was ridiculous to suggest he would have dealt with
one
individual in this way. Inexplicably, the reason recorded on the
pro forma
enquiry form for his non-attendance was that he was on night shift
and wanted to go to work but there was no transport.
[126]
Ndlovu, Makwekwe and Gwadiso were
challenged as to whether they had attended the enquiry at all,
amongst other reasons because their
names had appeared on a list of
217 members whom AMCU originally claimed had not attended
disciplinary enquiries, but were later
taken off when a revised list
was submitted. Ndlovu’s details also did not appear on a
register kept by the company of those
who had reported at Eagle’s
roost, nor did the company have the
pro
forma
record of the hearing which he
claimed he had attended. Makwekwe and Gwadiso were also challenged
about whether they had attended
a disciplinary enquiry on that day.
In their cases too, the company had no record of their names
appearing on the register or any
record of their hearings.
[127]
According
to the
pro
forma
disciplinary enquiry document
[1]
it advised dismissed workers that:
“
You
have a right to appeal the decision of dismissal and are advised that
you need to report to this venue tomorrow at 07:00 (transport
will
leave at 06:00 from the Itterileng residence) should you wish to
appeal.”
Workers
who wished to appeal were expected to indicate this in a tick box
provided for this purpose on the form. At some stage on
the 25 April
a brief was issued by Madondo advising that the workers who did not
attend a hearing on 23 April or who were dismissed
on 24 April had an
opportunity until 12h00 on Friday, 26 April to lodge an appeal or
attend a hearing. This brief was followed
by another one the
following day reminding workers of the cut-off, failing which they
would be dismissed effective from 12h00 that
day. How these briefs
were conveyed to dismissed employees was not an issue canvassed with
the applicant’s witnesses.
26
April 2013
[128]
Ndlovu claims that the following day he
reported at the hostel bus rank with his clocking history and was
about to board the second
bus heading for the venue where the appeals
were apparently going to be conducted but before the second bus could
leave the driver
of the first bus had communicated with the driver to
say that he should not come to the venue. As a result, he did not
have an
opportunity to appeal on 25 April. Makwekwe also claimed that
he was told that the appeals venue was closed after he had boarded
a
bus to attend an appeal hearing. Gwadiso claimed that she also queued
for a bus to attend the appeal hearing but the bus did
not arrive and
eventually they were advised to go to the security office where they
were given R 400 and told they should leave
and go back to the
Eastern Cape. Tiyo also mentioned this in his evidence. In Gwadiso’s
case, she went home. Under cross
examination, Gwadiso modified her
explanation of why she did not attend the appeal hearing by saying
that there was a very long
queue and only one bus was transporting
people. She also gave a somewhat confused explanation that the
appeals did not proceed
because the national organiser, Nkalatshana
was present.
Bezuidenhout also verified
that 474 dismissed workers who reported to the security complex with
letters of dismissal were given
R 400-00 to travel home, even if they
did not wish to sign for receipt of the cash.
[129]
Subsequently, on advice of an Assistant HR
officer, Ms L Mole (‘Mole’), Ndlovu also went to the HR
office, where he
was berated for coming late to lodge his appeal.
However nothing materialised and he was never called for an appeal
hearing. He
could not recall the date when this happened, but it
would seem even on his own version that it probably took place after
the expiry
of the final cut-off for lodging appeals. This is even
more likely given the version of Mole. She confirmed that Ndlovu had
sought
her assistance in April or May and he had complained that
there were no busses to take people to the appeal hearing, but said
he
had come too late with problem and he was told he could not be
helped. She denied he had been shouted or sworn at by various other

HR personnel who became involved in the issue. She did concede that
he had been wrongly dismissed, but she was not in a position
to
reverse the decision as it was not in her hands.
1.
[130]
One of the allegations made by Ndlovu was
that one of the more senior HR officers said that if they took him
back they would have
to take everybody back but Mole denied this was
said.
The
extended appeal process after 26 April
[131]
On AMCU’s request, a further
opportunity was provided for dismissed employees to appeal commencing
on 30 April 2013. This
was arranged by agreement between AGA and AMCU
at a meeting on 29 April 2013 at the Johannesburg Country Club. AMCU,
through its
attorneys, had requested a collective appeal on behalf of
the dismissed members, but AGA would not accede to that. Jacobs
claimed
that it was decided not to agree to this because it was felt
that there might be great injustices done to some individuals in a

collective appeal, because individuals would not be able to offer
explanations relating to them personally, a view also expressed
by
van Heerden. According to the letter from AGA to AMCU recording the
understanding:
“
It
was agreed to provide all employees with another opportunity to
appeal.  In this regard you are to impress on your members
to
avail themselves in order to appeal.  As agreed, your members
will be able to lodge and present themselves for such appeal
as from
07:30 on Tuesday, 30 April, up to 17:30.  And depending the
remaining people we will deal with such appeals until
14:00 on
Tuesday, 2 May 2013.”
The
letter also reaffirmed the
status quo
as far as Saturday work
was concerned but AGA committed itself to revive discussions about it
at a meeting on 6 May 2013. The applicants
also agreed that on 30
April Mr J Mathunjwa, the AMCU President (‘Mathunjwa’),
had advised his members and officials
to make use of the appeal
process. The cut-off at 14H00 was subsequently extended to 17H00.
Another part of the agreement was two
AMCU officials could attend as
observers. Jacobs was reluctant to agree that it was management’s
decision that workers could
not be represented by AMCU officials, but
this would seem consistent with their approach to the issue of
representation in the
disciplinary enquiries.
[132]
On the morning of 29 April, the applicant’s
attorneys advised the respondent’s attorney that AMCU officials
would be
assisting members lodging appeals of the following day. It
appears that Nkalitshana did arrive at the appeal venue on 30 April,

and was eventually allowed access to the venue but did not appear in
any of the individual hearings being conducted. Van Heerden
testified
that Nkalitshana and Mthunjwa had been at the venue from around 09h30
to 13h30, and that they had some deliberations
with management
personnel there, but nothing arising from this was brought to his
attention.
[133]
Ndlovu, who did not live in mine
accommodation but lived in Klerksdorp, denied ever being made aware
of this opportunity by AMCU
or anyone else. According to the company,
of the 500 odd workers dismissed 330 AMCU members attended an appeal
enquiry. Makwekwe,
who also did not live at the mine but caught a
taxi to work from his home near Orkney, claimed not to have heard of
the extended
appeal arrangement. Similarly, Gwadiso also claimed not
to have heard about the extended appeal process. Mphahlele in his
cross-examination
explained that the dismissals created a significant
degree of dislocation because some members would have gone home after
being
dismissed and might not have been aware of the opportunity to
appeal. Others did not live on the mine premises. At the time the

union was not necessarily aware of the extent to which there was
non-attendance at the appeal hearings.
[134]
While the appeal process was in progress,
the mine obtained a search warrant on 30 April 2013 and on 2 May a
search was conducted
at the hostel by the SAPS supported by mine
security personnel in which a sizeable quantity of iron bars, knives,
sharpened metal
spikes, knobkerries’ and other potentially
dangerous objects were seized. It was common cause that the items
could have belonged
to either NUM or AMCU residents of the hostel,
though it was in fact NUM that had asked management to conduct such a
search.
Subsequent
developments
[135]
It is apparent from correspondence media
briefings issued by AMCU from AMCU to the chamber of mines and to the
Minister that the
union initially adopted the stance that workers
were not scheduled to work on Saturday 20 April because it was an off
Saturday.
It was only in a media briefing issued on 9 May that the
union demonstrated that it was aware that the mine was
“non-operational”
on account of the section 54 notice and
the “alleged unprotected industrial action could have been
averted” if the
mine had notified workers that there would be
no work on that Saturday because of the notice.
Duties
of workers during the application of the section 54 notice
[136]
The versions given by the applicant’s
witnesses about the very limited, or non-existent, work performed at
the shaft during
the operation of the section 54 notice was not
essentially challenged during their testimony, except to the extent
that a concession
was sought that they were required to go to their
places of safety and await instructions. However, the later company
witnesses
were led at great length on the extent and importance of
the work that should have been and was performed by underground team
members
whilst the notice was effective. Initially, Jacobs simply
confirmed that even though operations were suspended, it remained a
normal
working day and workers were still obliged to attend work “to
do a number of activities, their cleaning activities”.
He
elaborated:
“
There
is refresher training, there is training and workers must be
available in the unlikely event that the section 54 is lifted,
so
that production can… resume immediately.”
[137]
Jacobs expanded on the waiting places, and
which workers were supposed to report in terms of the red notice.
Essentially he described
it as a place where workers could sit and
training could be given and issues giving rise to the section 54
notice could be reviewed.
A photograph of such an area showed a
rudimentary underground area with seating and a flipchart. Madondo
described waiting places
in the following terms:
“
A
waiting place is a place that is required in terms of our standards
and our procedures, that is the last place that any worker
can get to
that is safe before they can enter a working place.   Now,
a working place in this case, it refers to stoping
areas where
drilling operations and blasting operations occur, as well as
development ends, which is at the extremities of the
Mine.  So
somewhere in the crosscut, 50 metres to 100 metres, you will get a
waiting place, and a waiting place is a place
that is set up so that
it is safe, it is not affected by the blasting operations and the
such, and so any worker proceeding to
his working place will then be
required to get to the waiting place and wait there for further
instructions.”
On
each of the six levels of the mine there could be 10 to 20 waiting
places accommodating crews comprising 18 employees. Under

cross-examination, he sought to explain that the waiting area was
simply the last part of a much larger safe area which extended
all
the way back to the station. It was only after employees ventured
beyond the waiting area towards the mining operations that
they
entered a working area. It was the tracks from the station to the
waiting place that workers were expected to clean and his

interpretation of the s 54 notice was that even though he would
describe the area from the station to the waiting area as a work

place, it was not a ‘working place’ contemplated in the
notice which only referred to working areas beyond the waiting
area.
[138]
Madondo denied that the Red notice could
not be interpreted to permit such work, because employees were
required to await further
instructions which supervisors would have
issued and those partly related to the remedial actions in the s 54
notice concerning
track works. The fact that such remedial actions
were not risk free did not mean it was not safe for the purposes of
the s 54 notice.
He agreed that the night shift commencing on 18
April just after the Red Note was issued could have started the
cleaning work but
could not confirm they could have completed it by
the time they knocked off the next morning, nor could he say if it
could have
been completed in two shifts even if it was the only work
done for the following morning and afternoon shifts on 19 April too.
When pressed, Madondo could not confirm if any instructions of this
nature were issued.
[139]
To bolster Madondo’s evidence a
production shift boss, Mr D Machonga (‘Machonga’) was
called. He claims his supervisor
told him to go underground and talk
to his team about the s 54 notice at the waiting place, then clean
the crosscut, load the mud
and remove rubbish from that area.
[140]
Jacobs also elaborated further that during
the shutdown employees could still be engaged in functions making the
workplace safe,
which were not prohibited by the section 54 notice.
In this instance, they were instructed to clean railway tracks
leading to the
stopes, but not at the stopes as such. In the light of
this, he believed that despite the section 54 notice, 19 and 20 April
were
still normal working days and accordingly the company had not
misled the judge hearing the interim application to interdict strike

action by not mentioning the existence of the notice.
[141]
Jacobs conceded that he could not dispute
the evidence of WA1
that nothing was happening at the
mine when they reported for work on 20 April.
[142]
Under cross-examination he did concede that
no production losses, as such, took place but might have occurred if
the notice had
been lifted during 20 April and workers were absent.
Similarly, Jacobs denied that there had been any deliberate attempt
to mislead
the court hearing the interim application on 23 April that
Mponeng and Moab Khotsong mines had suffered production losses the
previous
Saturday of R11.6 million per shift, when the founding
affidavit had been signed on 22 April. In re-examination, the court
was
alerted to the fact that the founding affidavit referred to
losses AGA would face as a result of the “intended action”,

and not to actual losses suffered on 20 April.
[143]
During his second day of evidence, at the
first opportunity, Jacobs sought to rectify his unqualified
concession that there were
no production losses by explaining that
according to his understanding when the gullies were cleaned, even if
no blasting was done,
gold would be extracted from the debris that
was cleaned out. After mentioning this very specific new evidence he
said “I
just thought I just informed the Court of that…”
What prompted him to suddenly recall this particular detail the
following
day is not clear.
[144]
Van Heerden agreed that under the s 54
notice there could not have been normal production but that other
instructions were given
and in cleaning the rail haulages ‘a
lot of mud’ containing  gold bearing material could have
been loaded into
hoppers and transported to the plant. Later another
witness, Madondo testified extensively on this alleged productive
activity
being performed while the mine was non-operational. On the
basis of this he claimed the mine had suffered losses from
non-recovered
gold in the cleared material and in not making the mine
safe while the Red Note was effective. Machonga claimed that on both
his
Friday and Saturday shifts, the whole shift was spent on cleaning
work of this kind in a 300 metre crosscut. None of this type of

activity nor its extent was even hinted at when the applicants’
witnesses were canvassed on their obligation to report to
places of
safety as set out in the Red notice. Van Heerden also pointed out
that if the safety work set out in the s 54 notice
was carried out
the start-up process when operations commenced would be quicker.
[145]
The motivation submitted to the Principal
Inspector or Mines, which led to the lifting of the s 54 notice, was
that:
“
·
The following actions and control
mechanisms will continue to take place until the instruction is
complied with.  Supervisors,
including the mine overseers, the
shift bosses will conduct entry examinations with the crews to do
coaching over inspection, quality
of the entry examinations until the
competent A training has been completed.  Particular focus will
be placed in the areas
identified to be non-compliant in the order.
·
The training officers will check the
quality of the entry examination until training for supervisors is
completed.
§
All the deviations found during the
auditing of the rail conditions must be fixed before allowing any
tramming activities to proceed.
§
Disciplinary action or
non-compliance will be dealt with according to our procedures.”
[146]
It was put to Jacobs that in terms of the
instruction issued by the Inspector of mines in the section 24 notice
that there would
be no cleaning of tracks until the investigation was
completed and that it was only after the Green Note was issued on 21
April
2013 that the instruction was issued to fix the deviations
found during the auditing of rail conditions before any tramming
activities
could proceed. Jacobs maintained that this did not mean
that cleaning activities would not take place while the red notice
was
in operation.
[147]
Under re-examination, Madondo went so far
as to claim that between 10 and 30 % of normal ore production in a
shift could be recovered
simply from the cleaning operations done in
a crosscut, while mining operations were not in progress.
Overt
statements of bias against AMCU
[148]
Lebodi claimed that he was told by the
appeal chairperson. He also claimed that he was told by one Jabulane
Tshabalala, who had
previously been an AMCU member, that if he went
and apologised to management and signed a ten year membership
agreement with NUM
he could go back to work. However when he was
shown the photograph of the person with the corresponding name
and the same company number which
Lebodi had provided, he denied that it was the same person he had
spoken to. According to the
company records of the individual in
question had no union affiliation Lebodi also claimed that at the
appeal hearing when he was
asked why he should not be dismissed and
gave the explanation that there was no transport available he was
told that he must go
away “with his AMCU” by the
chairperson of the hearing. Jacobs disputed that AGA would ever have
entertained the alleged
tied membership agreement mentioned and
pointed out that AGA was the first to really embrace AMCU as a union
when it emerged compared
to other mining houses.
Evaluation
[149]
In its response to the applicant’s
statement of case, AGA contended that because the alleged unprotected
strike was only for
a day, no ultimatum was given to workers to
return to work nor was this practical given the circumstances of the
strike, but they
had been cautioned against unprotected strike action
on numerous occasions. Mphahlele disputed that it would have been
impractical
to issue ultimatums because the company could have used
loudhailers, notice boards and
meetings to do so.
Discrimination
The
sixty-four stop orders
[150]
On 24 April, when the disciplinary
enquiries were underway, NUM provided AGA with membership forms of
sixty-four employees, claiming
that since they were NUM members no
action should have been taken against them. AGA refused to process
the forms and recognise
the individuals as NUM members because it
claimed that it could not be certain forms had been completed prior
to the strike. In
other words it was concerned that certain AMCU
members were trying to change their union affiliation to avoid
association with
the strike. It was not disputed that 22 of the NUM
forms submitted were apparently completed by applicants in this
matter. According
to van Heerden’s testimony, 18 of those on
the list had no previous union affiliation and 42 were recorded as
AMCU members.
The forms were not accepted because the last one to be
completed had a date of 19 April and earliest dated back to February
so
they should have been submitted earlier.
[151]
Mphahlele was clearly reluctant to accept
that the company’s refusal to accept these forms was indicative
of an even-handed
approach to the two unions, but he clearly saw it
as an expression of its determination to ensure that AMCU members
could not avoid
disciplinary action by the stratagem of changing
their union affiliation. However, it was AGA’s case that it
only came to
learn of the twenty-two applicants’ membership of
AMCU when they were identified as such in the case. AMCU’s main
concern,
as expressed by Mphahlele, was that the company was only too
willing to accept that if NUM members said they could not get
transport
to the mine, their excuse was accepted but when the same
justification was offered by the applicants they were dismissed. He
attributed
this to hostility by AGA towards AMCU. Moreover, although
the company refused to accept the stop orders from NUM it was only
the
AMCU members amongst the sixty-four who were dismissed, which
suggested that the company was specifically targeting them. Van
Heerden
who had also suggested that workers who wanted to get to work
could have done so by other means. He also said that the only reason

NUM members were not charged with striking was because they said they
wanted to go to work but were being prevented from doing
so by AMCU
members’ intimidatory actions. He claimed that even a small
group of workers could stop a whole shift from working
if they
intimidated them. On the other hand, he felt that if the AMCU members
wanted to work they would have made the means to
get there, like
others who did report for work or who reported at the helipad.
[152]
Jacobs agreed that some of the 64 stop
order forms submitted were signed on 15 March 2013 and, on the face
of it, this suggested
that the relevant AMCU member had not sought to
join NUM for opportunistic reasons. However, membership forms were
usually received
soon after they were signed and the timing of the
submission of the forms lead AGA to believe that the change of
affiliation was
an opportunistic move related to the strike. Van
Heerden was tested under cross-examination that only 27 rejected
stop-orders were
returned to NUM by AGA and all of the rejected forms
were of persons who were dismissed, whereas the remainder were not.
He strongly
denied that the company had retained the other forms and
had not rejected all the stop orders.
[153]
It was put to Mphahlele that the company’s
willingness to reconsider the cases of AMCU members who had a valid
justification
for not being at work on 20 April and the fact that at
the time 46 AMCU members were not dismissed showed that the company
was
not unsympathetic where there was a genuine reason for an
employee’s absence. Mphahlele accepted that the company was
remedying
some individual cases, but felt that this paled into
insignificance in the light of the number of employees who were
dismissed.
As with the example of the sixty-four stop orders, these
were relatively trivial gestures by the company when compared with
the
vast number of non-AMCU members who were allowed to return to
work despite having been absent on 20 April.
The
Disciplinary Process
[154]
In an internal briefing document of AGA,
drawn up in preparation for
the enquiries, the disciplinary
process including potential risks and an alternative plan was set
out. Under the list of alternatives
if employees refused to attend
the scheduled disciplinary hearings, it was stated, amongst other
things:
“
Hear
the cases as per the above plan or mass dismiss AMCU members who
participated in the stayaway on Thursday”
Mphahlele
interpreted this to mean that there was already a plan to dismiss
AMCU members.
[155]
AMCU also argued that based on the
attendance records readily available to the company, it ought to have
been obvious that some
persons did not report for work for reasons
the company should have accepted as legitimate.
[156]
Jacobs denied that the company had targeted
AMCU members, but was of the view that it was clearly AMCU that had
consistently driven
the Saturday work demand and NUM was the first to
make contact with the company to advise that their members would not
support
it with the strike and were being threatened and intimidated.
Madondo testified that during the morning of 20 April while he was
at
the shaft working, he was approached by local NUM leaders.  In
relation to the contention that NUM members were excused
from
attending work on the basis that no transport was available, whereas
this excuse was not accepted from AMCU members, Jacobs
explained that
it was obvious that NUM members could not have boarded buses, whereas
it was part of the stated plan of AMCU leadership
to disrupt the bus
transport. This was part of an orchestrated action and even if buses
had been available AMCU would have made
sure that people did not make
use of them. He believed that the intimidation taking place at the
bus terminal was aimed at non-members
of AMCU. He accepted that some
AMCU members might not have supported the strike, which was why the
mine provided the alternative
of reporting at the helipad, even
though none of the 200 odd persons who reported there were
transported to the shaft. He agreed
the mine could not prove who did
not go to work because no busses were provided, but expressed the
view that it was the responsibility
of individuals to disassociate
themselves from what was happening.
[157]
Jacobs also disputed that the company’s
actions were aimed at maintaining NUM’s majority status at Moab
Khotsong, because
union membership strength was only relevant at
company level, and it did not matter which union was stronger at a
particular business
unit.
[158]
During the course of Jacobs’s
cross-examination he was questioned about a list of persons rostered
to work on 19 or 20 April,
that was only discovered while the trial
was under way. What that list showed is that approximately 38 persons
who were dismissed
on the company’s own records had a
legitimate reason for their absence. Jacobs denied that the failure
to exclude these persons
from disciplinary hearings or to exonerate
them on the basis of what period on the list was indicative that the
company was intent
on getting rid of AMCU members irrespective of the
merits of their individual cases. It was inevitable in dealing with
the 585
employees who were subjected to disciplinary enquiries that
errors would have crept in.  These were clarified when van
Heerden
testified. In all, 26 of those dismissed were either on sick
leave (like Gwadiso), clocked in at the shaft (such as Makwekwe and

Mzileni), not scheduled to work, on family responsibility leave,
attending training (such as Ndlovu).  A further 10 employees
who
were found not guilty at the disciplinary or appeal hearing but never
returned to work.
[159]
During the course of the trial, a review
was conducted on the cases of 36 individuals whose circumstances
suggested they ought not
to have been amongst those dismissed.
Of those, the company made offers of reinstatement with backpay to 20
individuals.
Two others were recorded as being re-employed and
were withdrawn as applicants. These offer were formalised during van
Heerden’s
testimony on18 February 2015. Prior to that date only
two offers of reinstatement had been made.
Were
the applicants on strike on 19/20 April 2013?
[160]
It is clear that the conditions of Saturday
work had been identified as a source of grievance not only at Moab
Khotsong mine but
across the company. Motloi’s evidence
supports this. Communications between AGA and AMCU preceding, and
during, 19 and 20
April 2013. The preponderance of the evidence also
points to the conclusion that AMCU local leadership was galvanising
for a strike
on the Saturday shifts of 19/20 April 2013. Mphahlele
agreed that from what he had heard and read that members had claimed
not
to work on Saturday, but the advent of the section 54 notice
automatically disposed of the notion that they were on strike.
[161]
When Jacobs communicated with Mphahlele on
19 and 20 April 2013, it is common cause that he did not convey the
course of action
which AGA intended to take in relation to the
individual applicants. It is also apparent that Jacobs did
communicate with Mphahlele,
but Mphahlele was initially noncommittal
and it was only after receiving the request for urgent intervention
in the form of the
SMS at around 11H00, that Mphahlele was prompted
to agree to meet with Jacobs. Once the belated commitment was made,
Jacobs did
not take up the offer by firming up a meeting.
Fairness
of dismissal as a sanction
[162]
Jacobs had defended the imposition of
dismissal on the basis that they are workers at Moab Khotsong on
final warnings and were aware
of them, the company had taken “quite
lengthy steps” to try and approach the action and that brought
the potential
consequences of embarking on it to the attention of
national and local leadership. Moreover, there was no remorse shown
by the
leadership or the dismissed employees. Given that the workers
had followed the leadership of the top seven which were “almost

a law unto themselves at the time” they did not believe the
relationship with those employees could be salvaged. The company
was
clearly of the impression that the local leadership was at odds with
national leadership on the Saturday work issue, but the
union had
failed to take a lead in this instance as it had done at Mponeng to
unlock the situation. He also dismissed the possibility
of
re-establishing an employment relationship with the dismissed workers
given that the company was currently in a restructuring
mode and had
shed 2000 jobs since 2012 in the low gold price environment.
[163]
Under cross-examination, Jacobs agreed that
some 39 individual applicants did not have a final written warnings
but were still dismissed.
However, he was reluctant to agree that
these workers should be treated like those at the Mponeng and Tautona
mines on the basis
that they had issued a pre-emptive ultimatum which
was consistently communicated through the DJ and the violence which
accompanied
the action meant that their dismissal was still
justified. Even if they had not been personally responsible for any
of the violence,
they had identified themselves with the action by
AMCU. It was only when van Heerden testified that some explanation
was provided
for this apparent anomaly. It appeared that 25 of them
were new recruits since the 2012 strike and the remaining 14 should
have
been issued with them but were not because at the time they had
been classified as having overstayed their leave and were scheduled

to be at work when the strike was still in progress, whereas the
other employees who were issued with warnings were simply classified

as being absent without permission. van Heerden’s view was that
even though the warnings might not have been communicated
to these
individuals it was communicated in general through union structures
and in a communique to workers. Madondo initially
agreed that if
there were such persons, and no other complicating factors applicable
to them, his view that the appropriate sanction
was dismissal would
change. He quickly reconsidered this view and decided that the
sanction would still be appropriate because
they had breached ‘very
key rules’ by not complying with instructions. Moreover, there
had been much effort spent communicating
with workers since the 2012
strike that it amounted to a serious offence. He would not be drawn
on comparisons with Tautona and
Mponeng mine in this regard.
[164]
Jacobs claimed that the mine had taken into
account the fact that a red notice was operating in evaluating the
appropriate sanction
even though he did not initially mention it as a
factor taken into consideration. He assumed that the chairpersons of
enquiries
had also taken account of long service of some employees.
[165]
When pressed on why workers at Moab
Khotsong were treated more harshly than workers at Mponeng who had
not reported for their Saturday
shifts in circumstances where normal
production was scheduled and losses would be have been considerable
,
Jacobs emphasised that the union
took responsibility and engaged with management at Mponeng. However,
even though an agreement was
reached on 29 April with AMCU at Moab
Khotsong that the status quo regarding Saturday work would remain,
that did not feature as
an issue in considering the appeals which
took place immediately thereafter.
[166]
In re-examination, the difference
highlighted by Jacobs between all the prior industrial action at
Mponeng and Tautona compared
with what transpired at Moab Khotsong,
was the involvement of local and national AMCU leadership. Jacobs
attributed the failure
to reach an agreement not to take disciplinary
action was that attempt to get the union involved were ‘futile’,
and
unlike the strikes at the other mines the Moab Khotsong action
was not called off.
Evaluation
Were
the applicants on strike on 19/20 April 2013?
Issue
estoppel
[167]
As  mentioned, on 7 June 2013 the
final order confirming the ruling issued on the 23 April 2013
effectively confirmed the declarator
that:
“
The
withholding of labour on Saturday, 20 April 2013 at the Applicant’s
Mponeng and Moab Khotsong Mines by the further respondents
is
declared to be an unprotected strike.”
[168]
By the time the final order was granted,
AMCU was aware of the s 54 notice which had been issued, but only
opposed an order of costs.
AGA argues that the applicants ought to be
estopped from disputing whether or not they had been engaged in an
unprotected strike
on the basis of the principle of issue estoppel.
[169]
In
Prinsloo
No And Others v Goldex 15 (Pty) Ltd and Another
[2]
the
SCA reaffirmed the general test of estoppel:
[23]
In our common law the requirements for res iudicata are threefold:
(a)
same parties, (b) same cause of action, (c) same relief. The
recognition of what has become known as issue estoppel did not

dispense with this threefold requirement. But our courts have come to
realise that rigid adherence to the requirements referred
to in (b)
and (c) may result in defeating the whole purpose of res iudicata.
That purpose, so it has been  stated, is to prevent
the
repetition of lawsuits between the same parties, the harassment of a
defendant by a multiplicity of actions and the possibility
of
conflicting decisions by different courts on the same issue (see eg
Evins v Shield Insurance Co Ltd
1980
(2) SA 814
(A)
at 835G). Issue estoppel therefore allows a court
to dispense with the two requirements of same cause of action and
same relief,
where the same issue has been finally decided in
previous litigation between the same parties.
[24]
At the same time, however, our courts have realised that relaxation
of the strict requirements of res iudicata in issue estoppel

situations creates the potential of causing inequity and
unfairness that would not arise upon application of all three
requirements.
That potential is explained by Lord Reid in Carl Zeiss
Stiftung v Rayner & Keeler Ltd
[1966] 2 All ER 536
(HL) at 554G –
H when he said:
'The
difficulty which I see about issue estoppel is a practical
one. Suppose the first case is one of trifling importance but
it
involves for one party proof of facts which would be expensive and
troublesome; and that party can see the possibility that
the same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may never
be brought. Must
he go to great trouble and expense to forestall a possible plea of
issue estoppel if the second case is brought?'
[25]
One can also imagine a situation where a purchaser seeks confirmation
of his or her purported cancellation of the sale in motion

proceedings. The seller may decide that the expensive and
time-consuming game is not worth the candle and thus decide not to
oppose.
But if the purchaser were then to sue for substantial damages
the application of issue estoppel in the second case may cause

clear inequity. The same situation will not arise in the case where
all the requirements of res iudicata are satisfied. In that
event the
relief sought in both cases will be the same. The seller will have to
decide whether to speak up in the first case or
hold his or her peace
in the second.
[26]
Hence, our courts have been at pains to point out the potential
inequity of the application of issue estoppel in particular

circumstances. But the circumstances in which issue estoppel may
conceivably arise are so varied that its application cannot be

governed by fixed principles or even by guidelines. All this court
could therefore do was to repeatedly sound the warning
that the
application of issue estoppel should be considered on a case-by-case
basis and that deviation from the threefold requirements
of res
iudicata should not be allowed when it is likely to give rise to
potentially unfair consequences in the subsequent proceedings
(see eg
Kommissaris van Binnelandse Inkomste v Absa Bank Bpk supra at 676B –
E; Smith v Porritt
supra para 10).”
[170]
In
National
Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd
[3]
, in which a final interdict
preventing unprotected strike action was confirmed after the
employees in question had already been
dismissed, as in this case,
the LAC held that the principle of estoppel did not prevent the
dismissed employees in that case from
asserting that they had been
engaged in a protected strike and that their dismissals were
consequently automatically unfair. Firstly,
the court reasoned:
“
[27]
In this matter, the strict requirements of res judicata are not
applicable, because the cause of action and the relief sought
are not
the same. In the first matter, the illegal strike was the cause of
action, whereas in these proceedings the unfair dismissal
of the
employees is the cause of action. In the first matter, an interdict
was sought, whereas in this matter reinstatement or
compensation was
sought for the unfair dismissal of the employees. The court a quo
found that the respondent succeeded in establishing
that res judicata
in the form of issue estoppel prevented the appellants from raising
issues which were finally adjudicated upon
in the interdict
proceedings. The question, however, is whether it would be fair to
uphold the plea of issue estoppel on the facts
of this particular
case.”
[4]
[171]
Turning
its attention to the case before it, the LAC found that when the
interim rule was confirmed, the court was most probably
not advised
that the strike was over and that the employer should have brought
that to the attention of the court before seeking
confirmation of the
rule. Consequently, the LAC held that “… to uphold the
plea of issue estoppel under these circumstances
would be contrary to
the requirements of fairness and equity.”
[5]
[172]
In this situation, the facts are similar in
that there had been no recurrence of attempted strike action
targeting Saturday work
and that the applicants had already been
dismissed by the time the application was heard. It is true that AMCU
knew that a section
54 notice had been in effect during the alleged
strike and could have challenged the final order on the basis that no
strike could
have taken place whilst the notice was in operation. On
the other hand, the judge granting the original interim order was not
apprised
of the existence of the notice, even though the interdict
was only brought after 20 April. Whatever impact the section 54
notice
ultimately would have had on the determination of whether or
not an unprotected strike took place, it was obviously an issue of

potentially great relevance and should have been disclosed to the
court by the applicant both when the interim order was granted
and
when confirmation of the order was sought. It might well have
affected the view taken by the judges hearing the application
on both
occasions. In these circumstances, I do not think that it sits well
in the mouth of the respondent to seek to rely on the
orders granted
in those circumstances to prevent the applicants from raising an
issue which it should have placed before the court
itself in any
event. For these reasons, the special plea of issue estoppel should
be dismissed even though my ultimate findings
on whether or not a
protected strike took place are the same. This brings me to
the substantive question, whether or
not AMCU members were engaged in strike action.
Were
applicants engaged in strike action on the Saturday shifts of 19 and
20 April 2013?
[173]
It is clear that the conditions governing
Saturday work, which were set out in collective agreements concluded
between AGA and other
unions, had been identified as a source of
grievance not only at Moab Khotsong mine but across the company. AMCU
was evidently
mobilising workers over the issue in both regions of
the company. Motloi spoke forthrightly on this. The preponderance of
the evidence
also points to the conclusion that AMCU local leadership
at Moab Khotsong was galvanising members for a strike on the Saturday
shifts of 19 and 20 April 2013 from at least 3 April 2013 onwards.
The top seven were driving this in parallel with the campaign
being
conducted by AMCU at other AGA mines on the issue of Saturday work.
Even though evidence was led that management at Moab
Khotsong
claimed to be unsure if such action was imminent,
it had started to take concrete steps in anticipation of a strike
happening which
suggest it realised it was a very real possibility.
Thus, the briefings were issued by the DJ on an intensive basis for
three days
beginning on 16 April and Madondo met with security
personnel early that week concerning the security of people who would
be going
to work.
[174]
At Mponeng and Tautona mines, AGA had
managed to prevent or at least limit the extent of a Saturday work
strike by putting the union
on clear terms and taking unequivocal
legal action, but it did not act as decisively when it came to the
looming situation at Moab
Khotsong. From the time that the top seven
issued an unambiguous threat on 3 April not only to stop working on
Saturday 20 April
but also to disrupt bus transport, there was no
evidence that the local leadership intended retreating from the
aggressive and
confrontational stance they had adopted: having made
the threat they simply refused to discuss it with management even
when it
was pertinently raised with them by van Heerden. Even though
they refused to discuss the issue with management they continued with

the build up to strike action, amongst other things, by holding mass
meetings at the hostel and the stadium at which the call not
to work
on Saturday was repeated. Mine management was also aware of this.
[175]
In light of the threats made to interfere
with bus transport, it is extremely improbable that the chanting
crowd which gathered
at the bus terminus on Friday afternoon
immediately after an AMCU meeting at the hostel was there for any
other purpose than to
discourage anyone from thinking of boarding the
bus waiting there, whether or not direct threats were actually made
to the driver
of the bus. No other plausible reason was advanced why
they would have been toyi-toying next to the passenger entrance to
the bus
at that time of day in falling rain. There is also the
additional evidence of complaints being received by Management from
NUM
representatives about AMCU threats in the week leading up to
Saturday. Added to this there was the undisputed evidence of a
serious
assault perpetrated on an NUM member, Mr Faife, who was on
his way to work on Friday. Obviously strike action was imminent on
Friday
evening and steps were being taken to minimise attendance at
work by interfering with bus transport to the mine.
[176]
Two issues muddy the water as to whether
the applicants were engaged in strike action. The first is whether or
not they could conceivably
have been refusing to comply with a lawful
instruction to work in the light of the legal and practical effect of
the s 54 notices.
Secondly, even if workers were obliged to perform
some duties while the DMR notice was in force, was the mere fact that
they did
not report for work, a sufficient reason to conclude that
they were participating in the strike, if the reason they gave for
not
reporting for duty was that there was no transport to the shaft,
which was situated some 13 kilometres from the hostel?
The
legal effect of the s 54 notice
[177]
From the evidence discussed above it is
apparent that there is considerable controversy whether or not the
effect of the section
54 notice was that most workers, including the
vast majority of the applicants, had no duties to perform, nor any
obligation to
do so. This is one of the issues that should have been
squarely placed before the judge considering the interdictory relief.
[178]
As
a matter of principle, there is no disagreement between the parties,
, that workers could not be said to be striking if they
did not
perform work which they were not lawfully required to perform because
of the section 54 notice.
[6]
The
controversy is whether ordinary mining crews could lawfully be
required to perform work. AMCU argued that essentially the effect
of
the section 54 notice and the red notice was that mining crews
underground were required to remain at their waiting places because

the section 54 notice emphasised that crews were to be “...removed
from the working places to a safe place”. It is
common cause
that waiting places were considered to be safe places. The area of
dispute concerns whether what constituted a safe
place extended
beyond the waiting place and, if so, whether any work could be
performed in that extended area.
[179]
As we have seen, Madondo’s view was
that a waiting place is simply the last safe place before entering a
working area in a
particular level of the mine and the area from the
station where crews entered a level, up to and including the waiting
place,
is a safe place. By contrast, he understood a working place to
be a place where productive mining operations are conducted. On this

interpretation the notice restricting crews from entering ‘working
places’ did not mean they could not perform activities
in a
safe place. Hence Madondo’s instruction in the Red Note that
employees should proceed to their waiting places, hold
safety
meetings and wait for further instructions but they could not enter
their usual working places, which only essential services
would have
access to.
[180]
By contrast, the applicants contend that
the term ‘working place’ includes any place where
employees perform work, which
would include cleaning work performed
on tracks in cross cuts. Accordingly, such work could not be
considered an activity taking
place within a safe place, but is work
performed in a working place. Consequently, the performance of such
work would be in contravention
of the section 54 notice, which
required crews to be removed from “the working places to a safe
place”. Madondo would
not agree that the place where tracks
were cleaned within the safe area constituted a working place as
such, but somewhat equivocally
called it an “an area of work.”
The cleaning work that crews were expected to perform fell within the
ambit of the
‘further instructions’, which they were told
to await from their supervisors.
[181]
What
constitutes a ‘working place’ for the purposes of the
Mine Health and Safety Act is
a matter of legal interpretation.
Although Madondo was not specifically confronted with the definition
of a ‘working place’
as defined in
section 102
of the
MHSA
[7]
, his notion that it was
confined to the area where productive mining operations were
performed by a crew was challenged under cross-examination.
[182]
However,
what constitutes a ‘working place’ in the general terms
of that definition does not do justice to the particular
way that
term is used in the functional design and architecture of the MHSA.
Thus,
section 27
(2) of MHSA imposes an obligation on an employer to
designate every ‘working place’ at a mine, in the absence
of that
being done by a collective agreement concluded under
s26
of
the MHSA. The designation of working places in a mine is a
pre-requisite for the appointment of health and safety
representatives
under
section 25
of the same act and a building block
for the health and safety organisational structure on a mine.
Consequently, when the term
‘working place’ is used in
the context of a particular mine, it immediately raises the question
of whether it can simply
be interpreted in the broadest sense as
argued for by the applicants or whether it ought to be interpreted as
a reference to working
places designated as such at that mine Also,
when an inspector issues an instruction under
section 54
(1) the
instruction is aimed at halting or suspending operations or
activities in parts or all of the mine in question, and does
not
necessarily have to be framed with reference to working places.
[8]
If, as in this case, the notice uses that term, it is still on the
face of it an arguable point whether it is intended to be a
reference
to identified designated working places or just to any place where
work is performed.
[183]
However, for the reasons which follow, it
is not necessary to determine if the obligations on mining crews
required them to perform
work cleaning the cross cuts, or if such
work would have constituted a contravention of the MHSA.
[184]
The parties agreed as a matter of fact
that, at a minimum, normal productive mining operations were
suspended during the period
of the notice. To the extent that a
factual dispute arose, it concerned the degree to which activities
performed during the notice
constituted work which, if not performed,
would cause economic loss to the mine. As previously noted, in the
course of the cross
examination of the applicants’ witnesses,
the scope of work AGA claims that crews were required to perform for
the duration
of the
section 54
notice was not meaningfully canvassed
with them. In my view, it is therefore unnecessary to go further into
the extent of the duties
that crews might legally have been required
to perform in the crosscuts because the applicants could not have
realised this issue
would be raised in evidence by the employer or
that it would assume the proportions it did. The ambit of duties they
allegedly
would have performed is therefore properly confined to the
version that the company put to the applicants’ witnesses.
[185]
For present purposes, it is sufficient to
recognise that it was within the scope of the
section 54
notice and
the Red Note that crews were obliged to report to their waiting
places and that a failure to do so would have amounted
to a failure
to obey a lawful instruction. Further, their presence there was not
only for the purpose of reviewing safety procedures,
but also so they
would be on standby in the event that ordinary mining operations
could resume. If they were at the waiting places
when this happened,
there would have been a minimal delay in restarting mining operations
if the
s 54
notice was uplifted during their shift. As such, a
refusal to comply with the instruction in the Red Note entailed at
least a refusal
to report to the waiting place and to remain in
attendance there as well as a failure to attend the safety training
conducted there.
This refusal amounts to strike action in the context
of the campaign to alter the terms of Saturday working arrangements.
The seriousness
of such action is a separate matter.  This
immediately raises the second issue namely: was the failure of
workers to report
at the mine for their shifts a sound basis for
inferring, in the absence of evidence to the contrary, that their
absence was a
consequence of their participation in the strike.
The
cause of the failure to report for duty
[186]
There was a dramatic drop in attendance by
workers reporting for duty starting with the night shift commencing
on Friday evening
and continuing through Saturday. Barely more than a
third of all those rostered to work reported on any of the shifts
during that
period. To the extent that the absence of company bus
transport might have presented an insuperable obstacle for any of the
hostel
dwellers to get to work if they had wanted to, only 195 of the
585 AMCU members charged with striking lived in the hostel, so at

least a 380 others who did not report for work would have travelled
to the West Vaal premises from outside locations.
[187]
In total, 181 AMCU members reported for
duty at the mine or at the helipad, amounting to 9.5 % of all the
workers who did so, whereas
AMCU members comprised 17% of the
workforce. This indicates that the attendance rate of AMCU members
was half of what could reasonably
be expected if non-participation in
Saturday work that weekend had been evenly spread across the whole
workforce.
[188]
In comparative terms, the response of AMCU
members to the exhortations broadcast to the hostel dwellers to
report to the helipad
was even more lacklustre than the admittedly
poor response by non-AMCU members:  non-AMCU members were more
than twice as
likely to report at the helipad compared to AMCU
members, assuming that the vast majority of all those who reported to
the helipad
would have come from the hostel. Although, in absolute
terms, nearly fifteen times as many non-AMCU members reported to the
helipad
compared to AMCU members, that number only accounted for 15 %
of non-AMCU hostel residents.
[189]
Overall, 1327 out of 3043 workers scheduled
to work a Saturday shift reported for work or went to the helipad.
This means that about
43% of the total Saturday shift workforce
visibly demonstrated an intention or willingness to work. Of the 766
AMCU members who
ought to have attended work according to AGA only
181 did so or reported to the helipad showing that about 23 % of AMCU
members
on a Saturday shift demonstrated an intention or willingness
to work their shift, which represents an AMCU participation rate just

over half that of non-members. Expressed in different terms, AMCU
members rostered to work would have made up about 25 % of the

Saturday shift workforce, but those members who did attend or report
to the helipad made up only 13,6 % of the total workforce
which did
either. This shows that AMCU members were noticeably
‘under-represented’ amongst those demonstrably willing
to
work, whereas non-AMCU members were correspondingly
‘over-represented’ in that group, relatively speaking.
These
figures are not really surprising given that AMCU local
leadership was driving the campaign and the campaign was directed at
contesting
working arrangements which had been agreed to with the
other unions including the NUM, in particular.
[190]
The relatively high proportion of
non-attendance by AMCU members compared to non-AMCU members strongly
supports an inference that
a significant number of AMCU members had
decided not to go to work on their Saturday shift to support the
campaign to change the
terms of Saturday work and consequently were
on strike.
[191]
That said, it is also true that a large
number amounting to approximately half the remaining non-AMCU workers
who should have reported
for work (1119 out of 2277) did not do so.
None of these workers were subject to disciplinary enquiries. It
appears AGA adopted
the view that they were not wilfully absent
because they were not AMCU members and no other union was agitating
for a change in
the overtime regime, so it was accepted that the
absence of this large group of individuals was due to other
legitimate reasons
such as a lack of transport or intimidatory
tactics of AMCU members. It took this view even though it was not
disputed that two-thirds
of workers did not live at the hostel and on
AGA’s own version should not have been reliant on bus transport
to the shaft.
This would mean that about 1500 non-AMCU members ought
to have been equally able to get to work as the AMCU members who did
not
live on the mine, so it would have been reasonable to expect that
about 380 more non-AMCU members ought to have reported for their

shift. By contrast, a lack of transport was not regarded as an
acceptable defence to the charge of striking by AMCU members. The

implications of these figures will be taken up later.
Were
the dismissals automatically unfair?
Only
AMCU members were dismissed.
[192]
S 5(2)(c)
of the LRA provides:
“
(1)
No person may discriminate against an employee for
exercising any right conferred by this Act.
(2)
Without limiting the general protection conferred
by subsection (1), no person may do, or threaten to do,
any of the
following-
(a)
…
(c)
prejudice an employee or a person seeking employment because of past,
present or anticipated-
(i)
membership of
a trade union or workplace forum; …”
Read
with s 187(1), which provides that a dismissal “…is
automatically unfair if the employer, in dismissing the employee,

acts contrary to section 5...”, these sections frame the ambit
of this claim.
[193]
It is common cause that only AMCU members
were dismissed for participating in the strike. The question is
whether this was in consequence
of selecting them for dismissal in
breach of the provisions above, or put differently that it was their
union membership which
was the primary reason for their dismissal.
The basis of this claim has a number of strands. The ones which
require the most attention
relate to the claim that only AMCU
participants in the strike were dismissed and the claim that the
company accepted justifications
for non-attendance from non-AMCU
members which it did not accept from AMCU members. Before dealing
with those two grounds, I will
address the others.
Miscelaneous
allegations of the applicants being singled out solely on account of
their union membership.
[194]
A number of other reasons suggest a direct
discrimination on account of union membership were advanced:
194.1
There was evidence tendered of direct
comments made by various Chairpersons of disciplinary or appeal
enquiries to the effect that
they were being dismissed because of
their AMCU membership.
194.2
NUM members who had participated in the
month long unprotected strike during 2012 had not been dismissed and
had been issued with
final warnings, whereas twenty two AMCU members
in this instance who had not received written warnings because they
had not participated
in the 2012 industry strike were nonetheless
dismissed including two of them who had testified to this effect in
their disciplinary
proceedings.
194.3
The company made no effort to exclude some
21 AMCU members who had a justifiable reasons for not being at work
on their Saturday
shift, in circumstances where it ought to have
known that this was the case at the time the hearings were conducted.
194.4
The company had planned to dismiss AMCU
members en masse.
194.5
The company dismissed 22 AMCU members who
had signed NUM membership forms, which NUM had submitted to the
company at the time of
the disciplinary enquiries, but not 42 others
who had signed the membership forms and were not previously AMCU
members.
[195]
Dealing with the question of whether there
was an intention to dismiss AMCU members en masse, the applicant
relies principally on
an internal planning outline of the
disciplinary enquiries. After outlining the process for conducting
individual enquiries with
small groups of workers, and identifying
the possible risk that workers might refuse to board the buses to
come and attend the
enquiries, the document contains the following:
“
Alternative
Plan: (
employees refuse to attend the
scheduled disciplinary hearings
)
·
Brief to MKM dismissed employees to report
to Eagle’s roost on Thursday by no later than 10:00 or else be
dismissed.
·
Hear the cases as per the above plan
or
mass dismiss AMCU members who participated in the stay away
on Thursday.
·
Brief dismissed employees of their right to
appeal (appeals to be heard by Friday, 26 April 2013).”
(Underlining
added).
[196]
Read in context I think the passage relied
on by the applicants simply indicates that the company was
considering what it should
do if the individual enquiries which
intended to proceed with could not take place. What was envisaged was
that in the absence
of AMCU members attending enquiries and advancing
an explanation for their absence from work they would all be
dismissed, but that
would still be subject to another opportunity to
provide a defence in an appeal hearing. Elsewhere I have discussed
the fact that
the decision to only charge AMCU members for
participation in the strike was not an unreasonable one as such.
[197]
There is no doubt that Jacobs struggled to
explain why 39 AMCU members without final written warnings for
previous strike action
were dismissed, given that so much emphasis
was placed on the importance of such warnings being issued in the
company’s attempt
to justify the differential treatment of
workers who went on strike at Tautona and Mponeng before the final
written warnings for
the 2012 strike had been formally issued to
them. As mentioned above, 14 of them simply had not been issued with
the warnings in
error, and ought to have received them. The remaining
25 were correctly recorded as not having written warnings. In the
context
of the claim of automatically unfair dismissal, I am not
satisfied however that AGA intended to treat these individuals
differently
because of their union membership, but that it
negligently failed to verify that all those dismissed indeed had
received the warnings.
for the 2012 strike. During the trial, the
company eventually conceded this omission and offered to reinstate 23
of the applicants
who were not on a final written warning at the time
of the dismissal, with six months back pay. Two of this group were
not offered
reinstatement because they were dismissed for other
misconduct as part of the top seven or the 17 alleged instigators.
The quantum
of backpay is still a matter of contention which is dealt
with later.
[198]
As regards the issue of the company
pressing ahead with enquiries against individuals whose own
attendance records showed that they
were not absent from work or had
a good reason not to be there, such as being on sick leave, the
explanation given by van Heerden
for these omissions was, in the
main, a plausible one. The attendance register which was used at the
disciplinary enquiries was
drawn from attendance records obtained on
Saturday 20 April. In the case of 18 applicants, their reasons for
non-attendance was
that, the relevant documentary records were only
filed after the attendance register of 20 April was extracted and
accordingly
did not appear on it, or their attendance was not
captured because the clocking records were drawn from shaft clocking
points,
and did not record clocking ins at access gates. In the case
of two others, they were erroneously recorded as being rostered for

work when they should not have been.
[199]
The company may be criticised for not
having been as thorough as it should have in not checking records
against the most recent
information, but in the context of conducting
large-scale hearings of this nature under a degree of time pressure
owing to concerns
about possible mass action of the kind experienced
that Mphahlele and Tautona mines if they did not conduct the hearings
expeditiously,
these omissions were not a reflection of a deliberate
strategy of disregarding exonerating factors.
[200]
Much was made of the 64 stop orders and the
AMCU members who were amongst us who signed NUM membership forms, but
whose change of
membership was not recognised, which resulted in them
being identified as AMCU members for the purposes of disciplinary
action.
On evaluation of the evidence, I am satisfied that AGA did
not receive the stop orders and did so on the basis that it had
reason
to believe that some of the forms had been completed
opportunistically because the timing of the submission of the forms
conveniently
coincided with the institution of the disciplinary
proceedings. In consequence, it did not recognise the apparent change
of allegiance
of the 22 odd AMCU members and they were disciplined
together with the others. The fact that they did not take
disciplinary action
against those who were existing members of the
NUM who had signed the forms or against signatories who previously
belonged to no
union was consistent with AGA’s general approach
of not charging non-AMCU members on the basis that they were not
affiliated
to a union that had instigated or supported the strike
action. How the company actually accepted the AMCU members’
change
of allegiance,that also could have been interpreted as an
approach favouring NUM over AMCU as it might suggest that employees
who
switched allegiance to NUM would be protected. As mentioned
elsewhere this was in fact an allegation made by one of AMCU’s

witnesses. I am not persuaded on the evidence that AGA acted in bad
faith in rejecting the forms at the time that they were submitted
and
in not recognising the change of allegiance.
[201]
Makwekwe, Gwadiso, Tiyo and Lebodi all
testified to specific remarks expressly demonstrating hostility
towards AMCU members and
indicative of an intention to proceed with
their dismissal simply on that basis. AGA attacks the credibility of
Makwekwe and Gwadiso
because their names did not appear on the
attendance register as being present at the enquiries and there were
no documents available
that would have demonstrated they had attended
one. Moreover, they appeared in the original list of 217 applicants,
whom AMCU claims
did not attend disciplinary enquiries. It is true
that Gwadiso said she saw Ndlovu at the disciplinary hearings, though
he never
testified to seeing her there. It is also true that AGA was
not able to produce a hearing bundle for everyone who did attend a
hearing, but it is unusual for there to be neither an attendance
record nor documents.
[202]
In Lebodi’s case, he claimed that his
enquiry and his appeal hearing where chaired by the same individual,
but this was shown
to be incorrect. He had claimed that it was the
appeal chairperson who had told him “You must go away with your
AMCU”.
The fact is that he was wrong about his claim that both
hearings were chaired by the same person certainly puts the
credibility
of his account in some doubt. Though it is not
implausible that in the context of the events leading up to the
dismissal of the
top seven and the instigators, that some remarks
expressing hostility towards AMCU might have been made, it seems
somewhat improbable
that a person chairing an enquiry would risk
making such a foolish remark. Tiyo’s evidence was that he had
given a note showing
that he was at training to Mr Steyn who was
coordinating activities at the disciplinary hearing. Steyn had
allegedly torn up his
note and said words to the effect that: “We
do not want AMCU people here.” Steyn could not recollected if
he had spoken
to Tiyo but pointed out that he was not conducting any
of the hearings himself and that any explanation Tiyo had tendered

would have been dealt with in his enquiry, not by him. He also
queried why he would make such a risky statement and behave so
vindictively to one individual in the context of AGA conducting 300
enquiries.
[203]
The allegations made by the individual
witnesses are serious. However in the context of a carefully planned
bureaucratic enquiry
process conducted by HR personnel it seems
somewhat improbable that such comments would have been made openly in
that environment.
It also seems such outrageous statements would not
have been noticed by other workers present, but none of these
allegations were
corroborated. Consequently I am not inclined to
attach any weight to them.
Non-AMCU
members participated in the strike but were not dismissed
[204]
AMCU contends that only AMCU members were
subject to disciplinary proceedings for their alleged participation
in a strike and were
ultimately dismissed. It is not a matter of
dispute that NUM and other non-AMCU members were immunised from any
disciplinary action
that AMCU members were subjected to. In essence,
AGA contends that it was inherently improbable that NUM members were
participating
in the strike whereas it was inherently probable that
AMCU members were. Consequently, it was perfectly rational for it to
subject
only AMCU members to disciplinary enquiries.
[205]
Firstly, AGA points out that NUM was not
supporting the calls for amending Saturday working arrangements and
was a party to the
collective agreements which regulated them. AGA
argues that on this basis alone, the participation of NUM members
must fail because
of the absence of a demand emanating from their
union. While this certainly may be indicative that NUM members were
not supporting
the strike, of course it does not follow that because
their union did not officially support the strike that none of them
participated
in it. In theory, it is not implausible that some NUM
members too might have liked to see an improvement in the Saturday
working
arrangements, despite the official stance of their union.
[206]
Further, AGA argues that, apart from the
evidence of Lebodi, who claimed that the NUM members he travelled to
work with had gone
to a two-hour meeting at the hostel, there was no
direct evidence of NUM members being on strike. Mphahlele could not
offer any
evidence that they had participated when asked to do so
under cross examination. Added to this, there was the evidence of at
least
one serious incident of assault on an NUM member on his way to
work and there were  ongoing complaints starting on Friday
evening from NUM local leadership about its members being intimidated
and expressing their own members wish to report for work.
Against
this, AMCU argues that Rohrs had previously given evidence at the
disciplinary enquiry of the top seven that “various
employees”,
most of them being AMCU members, had embarked on the strike.
Moreover, he could not identify more than a handful
of AMCU members
in the crowd visible in the video footage. Magakwe also conceded that
it was possible that NUM members were part
of the crowd gathered at
the bus terminus on Friday evening. In this regard, it is also
noteworthy that there was no attempt by
AMCU to identify any non AMCU
members amongst the crowd appearing in the footage. Although there
was some very generalised evidence
that the campaign against existing
Saturday working arrangements enjoyed wide support beyond AMCU
membership, there was no direct
evidence of non-AMCU members at Moab
Khotsong
expressing their support. All in
all, it must be said that the direct evidence of NUM participation in
the strike is extremely slender
especially having regard to the large
numbers of those absent from work.
[207]
Also, if one considers the evidence of the
attendance figures the significantly higher proportionate attendance
of non-AMCU members
clearly indicate that it was much more likely
that a non-AMCU member would have reported for work than an AMCU
member which strongly
suggests they were less likely to have
supported the strike. In my view, all the evidence is not enough on
its own to establish
on a balance of probabilities that non-AMCU
members were probably participating in the strike.
Lack
of transport was only accepted as a legitimate reason for
non-attendance by non-AMCU members
[208]
Another distinct strand in AMCU’s
argument is that when AMCU members had tried to explain that their
non-attendance at work
during the strike was owing to the absence of
transport, this defence was rejected out of hand. Yet, it was one of
the explanations
provided by NUM for its members not reporting for
work and that explanation was not questioned by the company. It is
common cause
that only one bus was put into service only on the
evening of 19 April and that buses never left the transport terminus
after no
one boarded it. It is also common cause that AGA decided not
to provide further transport for the remainder of the Saturday
shifts.
Consequently, it is a fact that there was no bus
transport provided by the mine for the Saturday shifts.
[209]
AGA argues that this issue can only be
considered in the context that AMCU members were on strike and NUM
members were not. Because
NUM members were not on strike it followed
that they would have tendered their services if there was no
transport or acts of intimidation.
By parallel reasoning it was for
AMCU members to discharge the evidentiary burden that they would have
tendered their services
if there was transport, because they were on
strike. Because only a handful gave evidence at the trial that this
was the reason
they could not attend work, the rest of the AMCU
members who rely on this defence had failed to discharge the burden
of proving
this was the reason each of them did not report for work.
However, when this justification was offered as a defence by a number

of AMCU members at their disciplinary enquiries, it was simply not
accepted.   In terms of the summary of 557 applicants

enquiries referred to by the applicants in the course of evidence,
approximately 250 of them had advanced lack of transport as
the sole
reason or one of the reasons why they had not reported for their
Saturday shift.
[210]
Jacobs expressed the view that AMCU members
who wished to disassociate themselves from the strikers could have
reported to the helipad
but only 13 did so. He agreed that the mine
itself could not prove which individuals had not attended work
because of the lack
of transport, but also pointed out that only a
third of the mine’s workforce lived at the hostel. AGA argued
that as far
as AMCU members advanced a defence that there was no bus
transport available they could still have got to work if they had
wanted
to as was evidenced by the testimony of
Ndlovu,
Makwekwe, Mzileni, and WA1. Madondo also testified to seeing
Mguzulwa and Shumi (members of the top 7) at the
mine on Saturday. Further, 214 leaders reported at the gateway
training centre
including 16 who were AMCU members. Most
significantly, 43% of those rostered to work did report for work or
reported at the helipad,
including 181 AMCU members. AGA relies on
these figures to show that it would have been relatively easy for
those who wish to get
to work to have done so even in the absence of
company transport.
[211]
It follows that  it was also
relatively easy for the great majority of those who did attend work
on the Saturday shift to do
so. Thus, we know that 952 non-AMCU
members reported for duty on their Saturday shifts which comprised
about 41 % of non-AMCU members
rostered to work. We also know that a
further 194 reported to the helipad. That leaves 1338 non-AMCU
employees who were rostered
to work who did not report for work or at
the helipad. On the basis that two thirds of that number did not live
at the hostel on
the company’s version, about 896 non-AMCU
members should also not have been dependent on bus transport to get
to the shaft.
In passing, it should be mentioned that it although it
was said that the bus transport was for the hostel residents, it was
never
put to witnesses living off the mine premises that they were
obliged to use their own transport to get to the shaft or that they

were not entitled to catch company buses from the hostel to the
shaft.
[212]
The company accepted the absence of the
1338 non-AMCU members, despite assuming that they wished to work,
because they could not
get transport or that there were acts of
intimidation. Evidence of intimidating action presented at the trial
was confined to the
activities of the group gathered at the bus
terminus and the assault on the NUM member in the early hours of 20
January. There
was no evidence led of any intimidation taking place
at the shaft itself. If it is accepted that the impact of the
chanting crowd
at the transport terminus would have mainly affected
residents of the hostel who would otherwise have used the bus
transport, the
fact that so many other non-AMCU members still
reported for work strongly suggest that the intimidatory actions
mentioned did not
impact on the decision taken by numerous
individuals to report for work, even
if it is also accepted
that the intimidatory action probably had a ripple effect beyond
those workers immediately exposed to it
. Moreover,
even in the environment close to the hostel when the opportunity was
provided for the workers on the day shift to report
at the heliport
194 non-AMCU members still did so. There was no evidence any of those
workers were subject to harassment or intimidation.
[213]
In summary, the effective basis for
differentiating between AMCU members who did not report for work and
non-AMCU members was that:
213.1
AMCU members were more probably absent
because they were striking since AMCU leadership was driving the
campaign to change existing
Saturday work arrangements, whereas NUM
was not.
213.2
Non-AMCU members who did not report for
work probably failed to do so either because there was no transport
or there was intimidation.
213.3
On that basis AGA felt it was justifiable
to select only AMCU members for disciplinary action on the grounds of
participating in
an unprotected strike.
213.4
However, when AMCU members advanced the
lack of transport as the only reason for not reporting for work this
justification was not
acceptable because either they ought not to
have been reliant on the bus transport anyway, or they should have
made other arrangements
as so many other workers did.
[214]
AGA contends that the differentiation in
treatment is simply a reflection that AMCU members were participating
in the strike and
non-AMCU members were not. Based on the attendance
figures discussed above, it was more likely that an AMCU member would
have been
absent from work than a non-AMCU member. Therefore as an
initial organising principle for deciding who was most likely have
participated
in the strike, this was not an irrational or inherently
unfair basis for selecting candidates for disciplinary action. This
is
quite apart from the fact that no other unions were supporting the
action. However, when it came to deciding who would be dismissed
and
the justification for non-attendance advanced by an AMCU member was
the lack of transport, that defence was rejected out of
hand as
unacceptable. This resulted in an anomalous disparity of treatment
which is difficult to justify.
[215]
Even if non-AMCU members were not presumed
to be on strike, their non-attendance was still excused on a blanket
basis that they
could not get to work because of a lack of transport
or intimidation. AGA claims that the differential treatment was
simply based
on participation in the strike action, but the point is
that this defence directly concerns whether or not such
non-attendance
was because of participation in strike action or some
other reason.
[216]
It is important to note at this juncture,
as observed above, that despite the criticisms of the company in
overlooking attendance
records in the initial enquiries, it did
accept other explanations from AMCU members being absent from work.
The ostensible reason
it did not accept an absence of transport as a
reason was that a significant number other individuals did report for
work. However,
it did not apply the same logic to non-AMCU members to
whom it imputed that justification. No good reason was advanced for
the
different approach adopted. It is one thing to argue that
charging AMCU members with striking was not unfairly discriminatory.
However, it is quite another to say that AMCU members who cited lack
of transport as the real explanation for their absence were
required
to show that they could not reasonably have found alternative means
of travelling to the shaft, if they wanted to rebut
the reasonable
inference that they were absent because they were on strike, when
other workers were excused for this reason without
any need to
demonstrate they made some effort to get to work.  AMCU members
who advanced this defence to a charge of participating
in unprotected
strike action, were unfairly discriminated against vis-à-vis
non-AMCU members whose absence for the very
same reason was excused
simply because they did not belong to a union whose local leadership
had supported the strike action. Accordingly,
AMCU members who
advanced a defence of lack of transport were unfairly discriminated
against because of their union membership
and their dismissals were
automatically unfair for that reason.
[217]
In any event, not all of the applicants had
advanced that defence, so it still remains to consider if the
dismissals of the remainder
of the applicants were substantively and
procedurally unfair. To the extent that I am incorrect in my finding
in respect of those
who advanced a defence of lack of transport the
analysis which follows would, in that case, apply to them too.
The
Substantive and Procedural Fairness of the dismissals
Procedural
unfairness
[218]
The procedural fairness of the applicants’
dismissals requires consideration of two issues. The first relates to
the steps
taken by the employer to give the strikers a reasonable
opportunity to reflect on what they are doing and to abandon their
strike
action. The second concerns the provision of an opportunity
for strikers to make representations why they should not be dismissed

for striking before a final decision is taken.
Steps
prior to the dismissal
[219]
The proper starting point for analysing
this leg of procedural fairness is item 6 (2) of the Code of Good
Practice: Dismissal which
reads:
“
Prior
to dismissal the employer should, at the earliest opportunity,
contact a trade union official to discuss the course of action
it
intends to adopt. The employer should issue an ultimatum in clear and
unambiguous terms that should state what is required of
the employees
and what sanction will be imposed if they do not comply with the
ultimatum. The employees should be allowed sufficient
time to reflect
on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably
be expected to extend
these steps to the employees in question, the employer may dispense
with them
.”
[220]
In
National Union of Metalworkers of South Africa (NUMSA) v
CBI Electric African Cables
the LAC held that the purpose of
contacting the union is:
“‘
Firstly,
it affords the union an opportunity to persuade the strikers to
resume work and secondly, it provides a safeguard against
possible
rash action by the employer
.”
[9]
[221]
In this instance, there was no attempt made
to issue an ultimatum to the workers at the time the strike commenced
on Friday evening
or during the course of Saturday. Announcements
were made from security vehicles every 10 minutes during the night of
Friday 19
and April and early the following morning. All these
announcements only told workers who could not get to work that they
could
report to the helipad. No mention was made that people who did
not report for work were engaged in an unprotected strike , nor were

they advised of the consequences of not going to work or reporting to
the helipad, namely that they could be dismissed.
[222]
It was argued by Jacobs that the Management
brief issued on 16 April by Madondo, which the DJ had read out at
regular intervals
was a ‘pre-emptive’ kind of ultimatum.
The brief itself simply asserts that if workers collectively
unilaterally withdrew
from Saturday work that would be ‘
similar
to strike action’ (my emphasis) and that the company ‘reserved
its rights’ to take ‘the necessary action
when people do
not adhere to existing agreements’. The somewhat blandly worded
brief does not say that a collective failure
to report for Saturday
work that weekend would be regarded as unprotected strike action and
that the company would take disciplinary
action which might include
dismissal of  anyone participating in such action.
[223]
Even if the brief might in principle
have served a purpose similar to an ultimatum, it fundamentally
failed to state ‘
in clear and unambiguous terms’
what was ‘
required of the employees’ and what sanction
[would] be imposed if they [did] not comply with the ultimatum’.
There was therefore no direct warning to employees in advance
what the consequences of them not honouring the Saturday work
arrangement
could be nor was there an attempt to communicate the
consequences of pursuing such a course of action when the mine was
bombarding
workers with communications to report to the helipad. If
reporting at the helipad was regarded as a substitute for reporting
to
work and if it was intended that employees who did so would not be
regarded as participating in unprotected strike action this was
also
never conveyed. Curiously, it was only on the following Monday that
management thought it prudent to point out in Madondo’s

briefing that day on the events of the weekend that “
final
warnings issued following the previous unprotected strike in 2012 are
still in force.” Prior to the Saturday shift it
had not been
felt necessary to bring this factor to any of the employees’
attention, even though it was a decisive factor
according to AGA in
the decision to dismiss most of the applicants.
[224]
The second issue concerns what attempts
were made to contact a union official to advise on the course of
conduct the company was
intending to embark on if workers did not
report for work. The degree of contact between AGA and union
officials in the events
leading up to 19 and 20 April and during the
course of the strike or a matter of considerable controversy.
Essentially, this issue
revolves around a few limited cellphone
communications between Jacobs and Mphahlele
[225]
In considering these communications it is
necessary to be mindful of the evolution of AGA’s evidence on
these communications
in the course of the trial and the consequential
amendment of its statement of response, which have already being
discussed above.
[226]
When Mphahlelewas cross-examined during his
initial evidence, it was put to him that there were communications
between him and Jacobs
on 19 and 20 April, which appeared, at face
value, to be possibly contrary to the admission made by the company
and recorded in
the pre-trial minute that
“
The
respondent made no contact with any AMCU trade union official on 19
and / or 20 April 2013 to discuss the course of action that
it
intended adopting in relation to the individual applicants herein.”
At that point in the proceedings the applicants
knew that the respondents were seeking to withdraw that admission on
the basis of
the conversations mentioned. Notwithstanding the
recorded admission, the applicants had also nonetheless admitted by
that stage
that Mphahlele had received an SMS from Jacobs at 10h55 on
Saturday morning. That SMS clearly made reference to an “earlier

telecom” between them. Jacobs also requested to meet with
Mphahlelethat morning and requested the urgent intervention by

Mphahlele and the AMCU national leadership. Jacobs went on to express
his concern about the situation having the potential to escalate
and
to lead to widespread violence and unprotected strike action at AGA’s
Vaal River mines. The focus of the SMS’s
was on achieving a
resolution, but contains no mention of direct or indirect threats of
dismissal if workers did not report for
work.
[227]
According to Jacobs, the earlier telephone
conversation took place at around 07H00, at which point he claimed
Mphahlele as noncommittal
because he was involved in a church
function but nonetheless undertook to revert to him. The previous day
Jacobs claimed that he
had attempted to get hold of Mphahlele
sometime around 18 H00 and 19 H00 but Mphahlele had not taken his
calls and he left a detailed
voice message asking him to call him
back and intervene in the matter.
[228]
It was common cause that there was a
further conversation between them about an hour after the SMS was
sent on Saturday morning
and that they agreed to have a meeting,
subject to Jacobs reverting to Mphahlele However Jacobs did not
revert as there was no
chance of recovering the shift and AGA’s
focus shifted towards formulating its legal strategies going forward.
[229]
What emerges from these communications is
that Jacobs did attempt to contact Mphahlele to seek his assistance
though he did not
specifically advise him of the course of action
that AGA intended to take against AMCU members if they persisted with
their strike.
Mphahlele did not recall Jacob’s alleged attempt
to communicate in the evening of 19 April, but conceded that he might
have
been involved in a church function on the Saturday morning. In
Mphahlele’s initial evidence he did say that if he had known

that ultimatums had been issued and if he had been contacted about an
alleged unprotected strike he would have driven there and
tried to
speak to Jacobs and the relevant mine management to see if the union
could discuss the issue and assist.
[230]
Given the reference in the SMS to the
previous conversation earlier that morning, it seems probable that
the conversation
did take place and that the subject matter of
conversation was reasonably accurately reflected in the SMS itself.
Otherwise, Mphahlele
could have been expected to take issue with it .
In the circumstances, it does not seem that Mphahlele acted with any
speed to
deal with the matter because a period of approximately 5
hours appears to have elapsed between the early morning conversation
and
the time when he agreed to meet with Jacobs. Even if there had
been no mention of ultimatums as such it ought to have been obvious

that an unprotected strike was underway and that the company was
seeking the assistance of the national union officials to resolve
it.
[231]
The more controversial communication
between Mphahlele and Jacobs is the one of 16 April, which Jacobs
first alluded to in his evidence
in chief, but which had never been
put to  Mphahlele under cross examination. Leave was granted on
23 March 2015 to allow
the respondent to remedy this defect in its
cross-examination and the applicants were also permitted to
cross-examine Jacobs further
on this call following Mphahlele’s
additional cross-examination and re-examination.
[232]
The evidence is canvassed above under the
events of 16 April. Essentially, Jacobs claimed that he had conveyed
his concerns to Mphahlele
about the threat to boycott Saturday work,
reminding him of the legal action taken at Tautona and Mponeng and
expressing the hope
that it would not be necessary to follow the same
route. He also claimed to have outlined the ramifications of strike
action for
AMCU and its members.  The upshot of Mphahlele’s
evidence was that he could not recall the specifics of a conversation

on 16 April but recalled a conversation with Jacobs about AGA
engaging with AMCU on the Saturday work issue.  He was more

confident that there had not been a discussion about the situation at
Moab Khotsong as distinct from a general discussion about
engaging on
the Saturday work issue. He was also insistent that if he had been
specifically forewarned of impending strike action
at Moab Khotsong
he would have gone to the mine the following day.
[233]
From Jacob’s email to Hart on 16
April, it is reasonable to assume there had been a communication
between him and Mphahlele
t
hat
day. However, the email reveals no more than Jacobs recording an
intention to formally engage AMCU in discussions on the Saturday
work
issue. It gives no indication that a warning of impending strike
action at Moab Khotsong had been canvassed with Mphahlele
It is true
that Mphahlele’s recollection of the details of each specific
conversation he had with Jacobs was poor, and he
did not claim to
have the ‘photographic mind’ Jacobs appeared to have. He
was more confident that they had never discussed
an imminent strike
at Moab Khotsong because his recollection was that the only
discussion on engagement on the Saturday issue had
been at a general
level, and because he thought it very improbable he would not have
gone to the mine if they had discussed the
Moab Khotsong situation
specifically.
[234]
It is true that Mphahlele was tardy in
dealing with Jacobs on Saturday 20 April, but previously he had been
prompt in intervening
directly at other mines when the call for
intervention was made by management and the seriousness of the
situation was made clear.
If Jacobs had called for his intervention
in unambiguous terms and had warned him that an unprotected strike
was looming at Moab
Khotsong and if Mphahlele had agreed to
investigate and revert, it does raise the question why Jacobs never
followed up on Mphahlele’s
alleged commitment before he called
him late on Friday evening. His subsequent conversations with
Mphahlele on 19 and 20 April
also make no reference to Mphahlele’s
apparent  inaction since the call on 16 April. Given the failure
of Jacobs to
make any follow up despite Mphahlele’s supposedly
inaction over the next couple of days, it seems more likely that the
call
to Mphahleleon 16 April had not dealt specifically with events
unfolding at Moab Khotsong. It is true that it seems reasonable to

expect that Jacobs would have raised the alarm at that time, but
AGA’s general approach to the looming situation at Moab

Khotsong was oddly low-key in nature.
[235]
From the narrative above it is very
difficult to believe that the company genuinely was unsure if strike
action was likely at Moab
Khotsong, particularly given the
interaction with AMCU local leadership in meetings with management
when the Saturday working issue
was raised and the increasing
mobilisation by the leadership. It was reasonable to expect that the
company would have raised concerns
with the national leadership
immediately after the threat made by the local leadership on 3 April
especially when it was coupled
with an unashamed promise to disrupt
transport. Yet, in the whole period between 3 April and the strike on
19 and 20 April, not
a single letter emphasising what the company’s
stance would be if such threats were persisted with was sent to AMCU
head
office, even though that
modus
operandi
had been usefully employed at
other mines which hitherto had a much more violent recent history.
[236]
AGA rationalised the different approach at
Moab Khotsong on the basis that it was trying to engage the union to
build a longer term
and that there was more time to allow the union
to take the necessary steps to rectify the situation. The main
difficulty with
this explanation is that it is apparent that the
focus of AGA’s interaction with AMCU senior leadership on
Saturday working
arrangements was essentially to deal with the issue
in the West Wits region of the company, and that communications about
imminent
strike action over Saturday working arrangements related to
events at Tautona and Mponeng mines. Even after there had been a
meeting
at the Itireleng hostel on 11 April at which the issue of not
working on Saturdays was discussed, there was no attempt to directly

communicate with AMCU head office on the situation at Moab Khotsong
even though ultimatum’s were issued in respect of Tautona
and
Mponeng. After the further warning sign at the meeting on 15 April
with the top seven when they refuse to even talk about Saturday
work
when it must have been obvious that they were escalating the campaign
on the ground, the company embarked on an intensive
briefing program
directed at the workforce, but there was no further direct attempt to
engage the local leadership of AMCU to put
them on terms, nor was
national leadership of the AMCU advised of the recalcitrant attitude
of the top seven or of the briefing
which had been issued to the
workforce. It seems remarkable that there was not a single piece of
correspondence directed by AGA
to AMCU head office during that week.
[237]
In the circumstances, I accept that AGA
made some effort to convey to the workforce that a failure to work on
Saturday work would
be unacceptable and could be construed as
industrial action, the thrust of that communication was not as
unequivocal as a proper
ultimatum would have been. There was also no
effort at the time it was communicating through repetitive
announcements with the
workforce at the hostel to convey a clear
ultimatum to them during the course of the strike action. I also
accept that at least
once the strike action commenced that AMCU
national leadership, as represented by Mphahlele, had sufficient
information to have
recognised the need to intervene even if the
consequences of failing to bring the strike action to end were not
spelt out. In this
regard, I think it is reasonable to acknowledge
that while there is an obvious need for unambiguous and explicit
communication
to striking workers about the employer’s
intentions, it is sufficient for the purposes of seeking the union’s
assistance
that it be advised of the unfolding events and that its
urgent assistance in resolving the situation is required. The
company’s
relative reticence in dealing with AMCU national
leadership at Moab Khotsong compared to the way it had handled the
situation at
Mponeng and Tautona is discussed below.
The
opportunity to make representations
[238]
In
Modise
& others v Steve's Spar Blackheath
[10]
,
the LAC held that:
“
When
the audi rule was introduced into our employment law in the private
sector through the justiciable unfair labour practice,
the audi rule
applied to all dismissals, irrespective of the reason”
[11]
The
majority of the court also asserted clearly that this did not need to
take the form of convening individual disciplinary enquiries.
Thus in
rejecting an argument advanced by an employer in another case that
convening disciplinary enquiries would have resulted
in a substantial
further delay in bringing matters to a head and thus rendering the
ultimatum largely ineffective, the LAC held:
“
I
can see no delay that could have been caused if the employer had
given the strikes an opportunity to make written representations

within a certain number of hours, e.g. 24 or 48 hours, why they
should not be dismissed. That would have been compliance with the

audi rule.”
[12]
[239]
It is important not to overstate the requirements of the opportunity
an employer must give strikers to make representations
before
deciding to dismiss them. It is clear from the citation mentioned and
from several other references in the majority judgment
in
Modise
that ordinary disciplinary enquiries are not envisaged and there is
no requirement that they need to take an individual or collective

form.
[240]
In this instance, it is true that the Inquiries convened by AGA were
of a summary nature and were convened with no advanced
warning. There
was also no attempt to engage with AMCU nor even to invite workers to
ask for representation. Van Heerden and explained
that the company
had decided against a collective enquiry and collective appeals on
the basis that a more individualised treatment
would give each worker
a better opportunity to present the specific explanation for their
non-attendance. While the approach was
robust and brief, the fact
that a number of charged individuals were found not guilty at the
original enquiries does demonstrate
that a number of them were able
to make use of the opportunity to present justifications for their
absence and that those justifications
were accepted, at least where
the explanations did not relate to the absence of transport. It
cannot simply be ignored that 46
of those charged were found not
guilty as a result of the internal disciplinary processes.
[241]
Apart from the fact that the company made no arrangement for
representation of any sort, I do not think it can be said that

workers were not afforded any opportunity to be heard before they
were dismissed, albeit that the enquiries were convened in a
drumhead
fashion. The fact that some of their representations were not
seriously considered is an issue which relates more to the

substantive fairness of their dismissals.
[242]
However, it must be said that the way the enquiries were convened
hardly gave the applicant’s an opportunity to consider
how they
might approach the enquiries. It is true that the announcement was
made by the DJ to the workers who had been corralled
at the buses
that they were going to be given an opportunity to explain why they
were not at work, which is the essence of the
main defence to a
charge of participating in an unprotected strike given that a worker
was not at work during the strike. However,
they were not given the
pro forma
charge sheet to mull over before they were called to
their individual enquiries. Further, there was no practical
opportunity to
seek any advice, let alone obtain assistance in making
representations. Effectively, they were isolated from contact with
the union,
until they had been dismissed. However, I am satisfied
that these limitations were cured or mitigated by the extended appeal
process.
[243]
As regards the appeal process, it does seem that communication of the
right to appeal was not well done. However, it was extended
and AMCU
was a party to the extended appeal process. The attenuated right to
hearings in strike dismissals does not extend to a
right to an appeal
hearing as a matter of course and in so far as it is offered, there
is no reason in principle why it has to
be more elaborate than
the dismissal hearing in its execution.
[244]
In conclusion, even if a large number of
the applicants’ dismissals were not automatically unfair
because they actually were
absent from work because they supported
the strike, AGA’s approach in dismissing the applicants for
embarking on unprotected
strike action, without issuing clear and
unambiguous ultimatums to workers to return to work or face the
prospect of dismissal,
was procedurally unfair. The briefs issued
before the strike, though prudent, were too tentatively worded to
serve as an advance
ultimatum and in any event did not justify the
failure to issue any ultimatums once the strike had commenced.
Further, although
they were afforded an opportunity to make
representations, they were unnecessarily deprived of any reasonable
opportunity to consider
the representations they should make or to
obtain advice on how to make representations, even if they were not
entitled to union
representation at the hearings.
Substantive
unfairness
[245]
Item 6(1) of the Code deals with the
substantive fairness of dismissing participants in an unprotected
strike. It reads:
“
Participation
in a strike that does not comply with the provisions of Chapter VI is
misconduct. However, like any other act of misconduct,
it does not
always deserve dismissal. The substantive fairness of dismissal in
these circumstances must be determined in the light
of the facts of
the case, including –
(a)
the seriousness of the contravention of this Act;
(b)
attempts made to comply with this Act; and
(c)
whether or not the strike was in response to unjustified conduct by
the employer.”
[246]
In
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[13]
, the LAC explained that
this was not a list of exhaustive considerations in determining the
fairness of a strike dismissal, viz:
“
[30]
In his work Grogan expresses the view that item 6 of the Code is not,
and does not purport to be, exhaustive or rigid but merely
identifies
in general terms some factors that should be taken into account in
evaluating the fairness of a strike dismissal. He,
therefore, opines
that in determining substantive fairness regard should also be had to
other factors including the
duration
of the strike, the
harm caused
by the strike, the
legitimacy of the
strikers’ demands
, the
timing
of the strike
, the
conduct
of the strikers
and the
parity
principle
. I agree with this view as
the consideration of the further factors ensures that the enquiry
that is conducted to determine the
fairness of the strike-related
dismissal is much broader and is not confined to the consideration of
factors set out in item 6
of the Code.”
(underlining
added)
Criteria
of substantive fairness set out in item 6 (1) of the code
[247]
In this matter, there is no reason to
believe that the attitude of the local AMCU leadership at Moab
Khotsong
regarding the Saturday work
demands were any different from the views expressed by Motloi. Their
perspective was that they were
not bound by agreements concluded by
other unions and were free to pursue their demands. Insofar as AMCU
national leadership had
cautioned them against strike action, they
were indifferent to such advice just as they were indifferent to
warnings from Moab
Khotsong
management to
respect the prevailing collective agreements. It may be that they
might have felt that it was an inherently unfair
to be bound by
agreements concluded by unions they were no longer members of, and
that some allowance might be made for a limited
understanding of the
binding effects of collective agreements in terms of section 23 of
the LRA, but they also made absolutely
no attempt to follow the
appropriate dispute resolution mechanisms of the LRA.
[248]
In fact, the refusal of the top 7 to engage
with management on the Saturday work issue or the impending strike
action was probably
indicative of the fact that they were aware that
they would be tackled on the unlawfulness of the intended action.
Quite apart
from not invoking any appropriate dispute resolution
mechanisms, they were not even interested in debating the issue with
mine
management. Clearly their expectation was that the strike action
of members was likely to yield more fruitful results than discussing

the issue with management.
[249]
In short there was no attempt whatsoever to
comply with the LRA before embarking on strike action and strike
clearly contravened
s 65(3)(a)(i) of the Act which prohibits strikes
where workers are bound by a collective agreement regulating the
issue in dispute.
The issue of provocation by the employer does not
even arise in this instance nor was it argued.
Broader
considerations affecting substantive fairness
[250]
However, a consideration of the broader
issues affecting the substantive fairness of the applicants’
dismissals yields a different
result.
[251]
In the outline of the evidence, it is
apparent that the intended impact of the strike was virtually
completely muffled by the cessation
of productive operations on the
mine owing to the section 54. In truth, it was the effect of section
54 notice which superseded
the effect of any strike action. There was
no evidence to show that the strike even retarded the resumption of
operations when
the notice was lifted. Obviously, had it been a
normal working Saturday the consequences of the strike would have
been markedly
different. Even if consideration was given to the
evidence of the cleaning work that might have yielded some gold ore,
no estimation
of any actual loss caused by the low attendance on the
Saturday shifts was led. In any event, for the reasons mentioned
previously,
it would not be proper to take account of this evidence
which was not properly canvassed with the applicants’
witnesses.
[252]
It was in the nature of the demand which
lay at the heart of the strike that it was confined to the Saturday
shifts. Consequently,
quite apart from the fact that its impact was
severely blunted by the section 54 notice, it was of relatively short
duration. The
question of the timing of the strike will usually be a
more important consideration when the strike starts with little or no
warning,
or is timed to create the maximum impact. On this occasion,
for the reasons discussed already, it could hardly have come as a
surprise.
Fortuitously, its timing coincided with a shutdown of
productive operations, which significantly lessened its seriousness.
[253]
To some extent the legitimacy of the
demands have already been alluded to in discussion of the criteria
under item 6 (1) above.
It is so that there might have been a
perception that where AMCU had achieved a majority unions status it
ought not to be bound
by agreements concluded by previous majority
unions. But then the appropriate remedy was to demand that the mine
should give notice
to terminate those agreements. Also, the fact that
AMCU members might have believed that they ought to legitimately be
able to
renegotiate the terms of Saturday work did not mean that
expedience could then dictate how this legitimate aim was to be
achieved.
[254]
As far as the conduct of the strikers is
concerned, AGA dealt decisively with those identified as instigators
or alleged perpetrators
of violence. AGA did not pursue charges of
strike related misconduct against the rest of the applicants, nor was
there any evidence
led to suggest that their conduct as strikers was
aggravated by other actions they committed.
[255]
In this matter, the most important criteria
affecting the fairness of the dismissals concerns whether or not AGA
acted consistently
in meting out the sanction of dismissal to them
and whether dismissal was an appropriate sanction in any event. The
applicants
claim that the company acted inconsistently in the
following respects which are dealt with below.
[256]
The first claim relates to the underground
sit ins at Mponeng and Tautona mines in November and December 2012.
In neither of those
two instances did AGA take disciplinary action
against the workers who participated in them. In both these actions
ordinary mining
operations were interrupted for at least a full day.
At Mponeng this had resulted in considerable losses. In both cases,
although
there had been an agreement reached that workers would be
issued with final written warnings for their participation in the
general
strike of 2012, those warnings had not yet been issued at the
time of the two sit ins. In any event, in neither of these actions

was any disciplinary sanction imposed on workers for their
participation in the sit ins. The rationale advanced by Jacobs for
not taking action against workers participating in the sit in at
Mponeng mine was that it was not in the interests of the long-term

relationship AGA wanted to establish was AMCU and it could not
contemplate dismissing 2000 workers. At TauTona one of the
justifications
advanced was that the company was unable to identify
who had participated in the sit in. However, Naidoo agreed that it
was possible
to identify which of the workers were AMCU members at
that stage. Moreover as Nangu pointed out nothing prevented the
company from
charging everyone and giving them an opportunity to
explain why they were not part of the sit in. It was also argued that
in effect
the situation at Tautona was more akin to a hostage
situation because certain staff were being held underground against
their will.
It certainly appears that this and other criminal conduct
was a feature of that action. Nevertheless that does not detract from

the fact that it was also an unprotected strike. In this instance
too, Jacobs testified that part of the decision not to take any

disciplinary action against them was because of the tension and
climate at the mine at the time and management’s desire not
to
add fuel to the fire.
[257]
What emerges from the above is that the
decision not to take disciplinary action of any kind in those two
instances was informed
less by considerations of principle than of
pragmatism and expedience. Leaving aside the fact that those
employees have not formally
been issued with the written warnings for
the general strike, unlike the vast majority of applicants at Moab
Khotsong, the disparity
between the severity of the two sit-ins and
the strike in this instance compared with the disparity in the
sanctions meted is very
difficult to reconcile. Jacobs tried to
explain this on the basis that agreements were reached with the union
in both those cases
after the union made representations and because
of the fact that in this matter most of the applicants were on a
final written
warnings.
[258]
It seems to me that the mere fact that the
union made representations in those two instances, in and of itself,
is not a substantial
consideration of principle that would explain
dismissal in this instance and the absence of any disciplinary action
in the other
cases. It is true that there is still the matter of the
final written warnings, which in this case had not only been agreed
upon
but had been issued. Nonetheless, given the relative
insignificance of the severity of the strike in this matter, it is
very difficult
to understand, as a matter of principle, why AGA
regarded the strike as warranting dismissal based principally on the
final written
warnings, but was willing to effectively turn a
disciplinary blind eye to far more serious industrial action at the
other mines.
In my view, the reasons advanced by Jacobs did not
justify the disparity of treatment.
[259]
The second claim relates to the fact that
no disciplinary action was taken against those workers who had struck
in support of the
Saturday work demands at Mponeng mine. In this
case, comparisons are less easy to make because the strike was called
off as a result
of the timeous intervention of the AMCU head office
and the cooperation of local AMCU leadership. It is true that there
was a shortfall
in attendance, but there was also an agreement to
work in the shift and there were safety considerations that were
taken into account
because some workers were intoxicated by the time
they would have been on duty.
[260]
Thirdly, the applicants’ claim that
the way in which the mine approached the strike at Moab Khotsong
differed markedly from the way it had handled
matters at the other mines. Thus they argue that no attempt was made
to put the union
on terms or two obtained an interdict prior to the
anticipated strike. They submit that it is improbable that AGA
genuinely believed
that it was uncertain if the strike was imminent
and therefore this could not have been a reason for not launching an
interdict
or putting the union on terms. I agree that it is difficult
to understand how that could have been the case especially given the

briefings issued by Madondo and discussions held with security
personnel earlier in the week about ensuring the security of persons

wanting to go to work. It is true that Jacobs also claimed that the
company had decided to approach the situation differently at
Moab
Khotsong, but given the chain of events as they unfolded after 3
April it is very difficult to understand why the company
was not more
assertive in putting the union on terms, coupled if necessary with an
urgent interdict, as it had done at the other
mines, with evident
success.
[261]
However, even if I am incorrect in finding
that there was a degree of unjustifiable inconsistency of treatment
in the sanction imposed
in this instance and the lack of a sanction
imposed in the case of the two sit in strikes, this nonetheless has a
bearing on the
final consideration of substantive fairness which is
whether the sanction of dismissal was an appropriate one in the
circumstances.
[262]
Jacobs had defended the imposition of the
sanction of dismissal on the basis that most of the applicants were
on final warnings
and were aware of them. Moreover, the company had
taken “quite lengthy steps” to try and approach the
action and that
brought the potential consequences of embarking on it
to the attention of national and local leadership. Further, there was
no
remorse shown by the leadership or the dismissed employees. Given
that the workers had followed the leadership of the top seven
which
were “almost a law unto themselves at the time” they did
not believe the relationship with those employees could
be salvaged.
The company was clearly of the impression that the local leadership
was at odds with national leadership on the Saturday
work issue, but
the union had failed to take a lead in this instance as it had done
at Mponeng to unlock the situation.
[263]
In considering the appropriateness of the
sanction, the following factors are important in my view:
263.1
the mine was not in production mode when
the strike occurred;
263.2
the strike was of the short duration;
263.3
the duties which strikers did not perform
during the operation of the section 54 notice were a relatively
insignificant;
263.4
the start-up of the mine was not shown to
have been delayed by the strike action once the section 54 notice was
uplifted;
263.5
a large number of other employees who could
just as easily have found alternative transport to the mine on the
employer’s
version were completely excused from failing to
report for duty;
263.6
the applicants were not dismissed on
account of the actions of the instigators or the top seven.
263.7
the fact that there was no unambiguous
warning to the strikers of the potential consequences of proceeding
with their strike action,
particularly those on final written
warnings, even though this could have been communicated to them at
the outset, and
263.8
the fact that the employer had failed to
take any disciplinary action whatsoever against participants in the
far more severe strike
action in the sit-ins at Tautona and Mponeng;
[264]
in the light of those factors I am
satisfied that the applicants dismissals were in any event
substantively unfair.
[265]
A distinct group of applicants require
separate consideration. Fourteen applicants ought to have received
final written warnings
as they did participate in the 2012 strike,
but because their absence was incorrectly coded, the warnings were
not issued. There
was no dispute the warnings should have been issued
and there is no evidence that their knowledge of the warnings not
being issued
influenced their conduct. I believe that they ought to
have been treated like all the other applicants who had final written
warnings
and their dismissal would be unfair for the same reasons.
Relief
[266]
In the result, my findings on the question
of the fairness of the dismissals set out above are that the
dismissal of all the applicants
was substantively and procedurally
unfair for participating in an unprotected strike irrespective of
whether or not many of
their dismissals were also automatically
unfair for the reasons mentioned.  This finding does not apply
to the three applicants
who were dismissed for different reasons
whose names appear at paragraph 9 of Annexure B hereto.
[267]
A difficulty which presents itself with
granting relief for automatically unfair dismissal to those
applicants who claimed that
they could not get to the shaft because
of transport is that of all the specific reasons advanced for not
attending, this was the
common reason given by all those who advanced
specific defences except for 26 applicants who did not. Based on the
analysis above
which indicates that the non-attendance by AMCU
members was markedly higher than non-AMCU members, it is apparent
that a significant
number of those who claimed there was no transport
were more likely to have been absent because they were supporting the
strike.
Consequently, it would not be fair in my view to assume
that all the applicants would be entitled to relief for automatically
unfair
dismissal and it is impossible to identify those who were not
simply staying away because they were striking.  However,
because
I am satisfied that their dismissals were in any event
substantively and procedurally unfair, they can obtain relief on that
basis.
[268]
It is trite that, in the case of a
substantively unfair dismissal, reinstatement or re-employment is
mandatory in terms of section
191 (2) of the LRA unless the
circumstances surrounding the dismissal were such that a continued
employment relationship would
be intolerable or it could not be
reasonably practicable for the employer to reinstate the employee.
[269]
Although Jacobs did testify that he
regarded the employment relationship between AGA and the applicants
as destroyed, given the
circumstances in which it was willing to
continue to employ workers at Tautona and Mponeng and in the absence
of evidence of the
conduct of particular individuals that would make
their presence at the workplace intolerable, no good reasons have
been advanced
why reinstatement would be intolerable.
[270]
Jacobs
also dismissed the possibility of re-establishing an employment
relationship with the dismissed workers given that the company
was
currently in a restructuring mode and had shed 2000 jobs since 2012
in the low gold price environment. Obviously, it is a realistic

possibility that the employer might have to undergo a restructuring
exercise after reabsorbing such a large number of reinstated

employees. However, that is always a potential consequence of
reinstatement’s following mass dismissals sometime after the

event and we are not dealing in this instance a situation of having
to accommodate persons with particular skills in a workplace
which no
longer utilises those skills. The mere fact the reinstatement will
cause inconvenience ought not to be a bar to reinstatement.
[14]
[271]
If reinstatement is appropriate, the next
question which arises is whether the applicants should be reinstated
to the date of their
dismissals or for some shorter period.
[272]
Bearing in mind that the mass of the
applicants had embarked on unwarranted unprotected strike action, and
taking into account the
time since they were dismissed I believe
retrospective reinstatement for a period of twelve months without
loss of service is appropriate
relief.
[273]
As far as the determination of backpay is
concerned for the specific categories of applicant in respect of whom
offers of reinstatement
were made during the proceedings, I believe
the following periods of reinstatement are just and equitable bearing
in mind the relief
awarded to others above:
273.1
In respect of the 14 applicants who
erroneously had not had final written warnings recorded against them
for the 2012 general strike,
they should also be reinstated with
retrospective effect for twelve months.
273.2
Since the reason I have found the
dismissals were substantively unfair does not depend fundamentally on
whether or not applicants
had final written warnings, I believe it is
appropriate that those applicants who did not have final written
warnings issued to
them in respect of the 2012 strike, because they
were not eligible to receive ones, should be treated on the same
basis as the
main body of the applicants and be reinstated for a
period of 12 months.
273.3
In respect of the ten applicants who were
found not guilty at their enquiries or appeal hearings but did not
return to work, I believe
the company’s tender of retrospective
reinstatement for a period of six months is fair and appropriate.
273.4
Similarly, the four applicants who did not
appear to have attended disciplinary or appeal hearings should be
entitled to the same
relief as those who did not report for work.
273.5
It must also be mentioned that in respect
of the top seven and the seventeen instigators who were dismissed for
additional reasons
unrelated to their participation in the strike, it
is simply necessary to record that their dismissals for striking
per
se
were not substantively fair, but no
relief is award in respect of those individuals.
Costs
[274]
The parties do have an ongoing relationship
but the applicants have been substantially successful in many
respects and a number
of the individual claims should have been
resolved without the necessity of coming to trial. In the
circumstances, I believe they
ought to receive at least half their
costs.
Order
[275]
Accordingly, the following order is made:
[276]
Having found that the dismissals of all the
applicants for participating in an unprotected strike other than
those mentioned below
was substantively and procedurally unfair, the
respondent must reinstate these applicants with twelve months’
retrospective
effect within four weeks of the date of this judgment
on tender of their services, excluding the nine applicants whose
names appear
on Annexure “A” hereto, who have withdrawn
from the matter.
[277]
The ten applicants whose details are set
out in paragraph 3.1 of Annexure B hereto are reinstated with six
months’ retrospective
effect. To the extent that any of these
applicants have not yet been reinstated the respondent must do so
within four weeks of
this judgment on tender of their services.
[278]
The four applicants whose details are
set out in paragraph 3.2 of Annexure B hereto are reinstated with six
months’ retrospective
effect. To the extent that any of these
applicants have not yet been reinstated the respondent must do so
within four weeks of
this judgment on tender of their services.
[279]
The fourteen applicants whose details are
set out in Annexure D hereto are reinstated with twelve months’
retrospective effect.
To the extent that any of these applicants have
not yet been reinstated the respondent must do so within four weeks
of this judgment
on tender of their services.
[280]
The twenty two applicants whose details are
set out in Annexure E hereto are reinstated with twelve months’
retrospective
effect. To the extent that any of these applicants have
not yet been reinstated the respondent must do so within four weeks
of
this judgment on tender of their services.
[281]
The deceased applicants whose names appear
at paragraph 8 of Annexure B hereto are entitled to compensation of
twelve months’
remuneration
in
lieu
of reinstatement, which must be
paid by the respondent to their deceased estates on receipt of proof
of the appointment of an executor
and the relevant details of the
trust account of the deceased estate.
[282]
Payment of any backpay due in terms of the
above order must be made within two weeks’ of the applicant’s
return to work
or, in the event an applicant is already reinstated at
the date of this judgement within two weeks of the judgment.
[283]
The respondent must pay half the
applicants’ costs including the costs of two counsel.
_______________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:

F Boda assisted by S Collet instructed by Larry Dave Attorneys
RESPONDENT:

A Myburgh, SC assisted by M Lennox instructed by Fasken Martineu
NB:
PLEASE CONSULT THE PDF FOR THE ANNEXURE
[1]
263A
[2]
2014
(5) SA 297 (SCA)
[3]
(2015)
36
ILJ
1261
(LAC)
[4]
At
1270, para [32].
[5]
At
1270-1271, paras [33]-[40].
[6]
See
e.g.,
Simba
(Pty) Ltd v FAWU & others (1997) BLLR 602 (LC)
[7]
S
102 of the MHSA contains the following definition:
'working
place'
means any place at a
mine
where
employees
travel or work
[8]
Viz,
“
54
Inspector's power to deal with dangerous conditions
(1) If an
inspector
has reason to believe that any occurrence, practice or condition at
a
mine
endangers or may endanger the
health
or
safety
of any person at the
mine
, the
inspector
may give any
instruction necessary to protect the
health
or
safety
of persons at the
mine
, including but not limited to an
instruction that-
(a)
operations
at the
mine
or a part of the
mine
be halted;
(b)
the
performance of any act or practice at the
mine
or a part of the
mine
be suspended or halted, and may place conditions on the performance
of that act or practice;
(c)
the
employer
must take the steps set out in the instruction, within the specified
period, to rectify the occurrence, practice or condition;
or
(d)
all
affected persons, other than those who are required to assist in
taking steps referred to in paragraph
(c)
,
be moved to
safety.”
[9]
[2014]
1 BLLR 31
(LAC) at para 35
[10]
2001
(2) SA 406
(LAC); (2000) 21 ILJ 519 (LAC)
[11]
At
525, para [19]
[12]
At
541, para [65]
[13]
[2014]
1 BLLR 31
(LAC).
[14]
Equity
Aviation Services (Pty) Ltd v CCMA & others
[2010] JOL 26456
(LC) at par [36]/