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[2018] ZALCJHB 321
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Westdawn Investments (Pty) Ltd t/a JIC Mining Services v Newrak Mining (Pty) Ltd and Others (J2158/18) [2018] ZALCJHB 321 (9 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
No: J2158/18
In
the matter between:
WESTDAWN
INVESTMENTS (PTY) LTD t/a
JIC
MINING
SERVICES
Applicant
and
NEWRAK
MINING (PTY)
LTD
First
Respondent
IMPALA
PLATINUM
LTD
Second
Respondent
ASSOCIATION
OF MINE AND CONSTRUCTION
WORKERS
UNION
(AMCU)
Third
Respondent
NATIONAL
UNION OF
MINEWORKERS
Fourth
Respondent
UASA-THE
UNION
Fifth
Respondent
Heard:27
June 2018
Order:27
June 2018
Delivered:
09 July 2018
Summary:
[Section 197 of the LRA]
JUDGMENT-REASONS FOR
ORDER
MABASO,
AJ:
Introduction
[1]
This matter came before me on 26 June 2018. After hearing arguments
and having considered the matter, I made the following order:
“
1. The First
Respondent’s preliminary points are dismissed with no order as
to costs,
2. The matters heard as
one of urgency in accordance with Rule 8 of the Labour Court Rules
and the normal form and precedents prescribed
by the rules are
dispensed with,
3. The employees of
Applicant employed no.1 shaft of the Rustenburg operations of Second
Respondent as at 30 June 2018, will become
the employees of the First
Respondent on 1 July 2018, in terms of the provisions of section 197
of the Labour Relations Act, 66
of 1995,
4. There is no order as
to costs.”
These
are the reasons for the order.
Parties
[2]
The applicant is Westdawn Investments (Pty) Ltd t/a JIC Mining
Services, the first respondent is Newrak Mining (Pty) Ltd, the
Second
Respondent is Impala Platinum Ltd, the third respondent is
Association of Mining Construction Workers Union (AMCU), the
fourth
respondent is the National Union of Mineworkers (NUM), and the fifth
respondent is UASA- the Union. Only the first respondent
opposed this
application.
Preliminary
points raised by the first respondent
(a)
Why today, not yesterday
or tomorrow?
[3]
This matter was heard on a Wednesday, and this led to the first
respondent, in the answering affidavit, raising a point that
this
matter should have been heard either on a Tuesday or Thursday.
Relying on clause 12 of the Practice Manual of this Court,
the first
respondent contends that as much as an urgent application of this
nature may be heard on any other day of the week at
any time, in
order for this to happen, an applicant has to set out facts which
justify such set down.
[4]
The applicant in the replying affidavit, stated the reason why this
matter had to be set down on a Wednesday by submitting that
the
applicant’s attorney received the date directly from the
registrar of the Labour Court before delivering this application.
Mr
Pieter Johannes Van Der Merwe in the service affidavit indicates that
he communicated with the registrar on 18 June 2018 wherein
he
explained to the registrar the nature of the application and that the
matter might be opposed. That is when the registrar issued
the date
of the 27
th
which was a Wednesday. Based on the
satisfactory explanation provided herein by Mr Van Der Merwe and the
principle mentioned, in
paragraph 9 below, I am inclined to dismiss
this point.
(b)
Why now, not later and urgency?
[5]
The first respondent asserted that the applicant failed to comply
with clause 12.9 of the Practice Manual and alleged that it
was not
given a reasonable time within which to file an answering affidavit.
In the same affidavit, the first respondent stated
that it received
the application on 19 June 2018, and in terms of the notice of motion
it was given until close of business on
22 June 2018 to deliver the
opposing papers.
[6]
The first respondent further confirmed that the hearing was to be
held on 27 June 2018 and that “
the
applicant has provided for three days for [it] to deliver its notice
of intention to oppose and answering affidavit and thereafter
a
further three days for the applicant to file a replying affidavit if
necessary
”. It
further contends that three days is not a reasonable time, taking
into account that the application that was received
by it consisted
of 130 pages. Despite making this assertion, the applicant avers that
the period provided for in the notice of
motion is not a reasonable
time.
[7]
The first respondent confirmed that it sent correspondence to the
applicant’s attorneys asking for an extension in order
to
deliver its opposing papers by no later than 25 June 2018. The
response that was received by the applicant was that “
the
applicant did not wish to be obstructive in the hearing of the matter
and would not oppose the filing of the answering affidavit
on
technicalities.
It was
also indicated that the applicant appreciated the logistical problems
the first respondent might face and that it was willing
to
accommodate it”
.
[8]
Indeed the first respondent proceeded to deliver the answering
affidavit, and in the same answering affidavit it raises the
point
that it did not have reasonable time to deliver opposing papers. The
first respondent further states that this Court should
not to grant
an order of urgency as the facts and circumstances in the founding
affidavit do not justify condonation of failure
to comply with Rule
7(4) and (5)”.
[9]
Kirk-Cohen
AJ
, in
Sikwe v
S A Mutual Fire and General Insurance
[1]
explained what an
affidavit has to contain, in an urgent application and said,
“
It is correct that
the affidavit makes no mention of specific facts alleged to
constitute urgency; in fact there is no allegation
whatsoever that
the matter is urgent. In my opinion, an applicant who wishes to rely
on the procedure provided for in Rule 6 (12)
must set out sufficient
facts in the founding affidavit to enable the Court to decide whether
urgent relief should be granted.
Specific averments of urgency must
be made and facts upon which such averments are based must be set out
in the affidavit where
it is not otherwise apparent that the matter
is urgent. It does not follow that an application is necessarily
defective if the
form referred to in the Rule is not strictly adhered
to. In my opinion, it is the substance of the affidavit, and not its
form,
which will weigh with a Court; if an affidavit sets out facts
upon which a Court can decide that an applicant is entitled to relief
in terms of the sub-rule, the Court will entertain the application.
If the only reasonable inference from the facts set out in
the
affidavit is that the matter is one of urgency, then an applicant
will have complied with the requirements of the sub-rule,
even though
he does not make a specific averment that it is urgent.
[10]
I share the same approach by Kirk-Cohen AJ herein. The first
respondent upon receiving the application asked for an extension,
which was granted, and it proceeded to deliver a detailed affidavit,
and there was no objection by either of the parties for the
late
delivery of such answering affidavit. I do not understand how and why
the first respondent is of the view that a matter of
this nature can
be dismissed solely because the applicant did not comply with
certain procedural requirements in bringing
the urgent
application. Moreover, the first respondent’s representative
confirmed, in argument, that the facts of this matter
justify
urgency. Also taking into account that following the applicant’s
delivery of the replying affidavit, the first respondent
had an
opportunity to deliver heads of argument (which are not mandatory in
urgent applications).
[11]
The first respondent further submitted that the applicant has failed
to set out the facts which justify urgency, in line with
Sikwe’s
matter I proceed to set out what is contained in the affidavit which
in my view justifies urgency. Mr Loius Botha Lourens for the
applicant among others, set out in the founding affidavit that the
only time he learned that the first respondent had been the
successful tenderer for shaft 1 was on 13 June 2018. On 15 June 2018
the applicant sent an email to the first respondent with an
intention
to inquire as to whether the applicant’s employees on shaft 1
would be taken over. However, the first respondent
responded on 18
June 2018. This application was lodged on 19 June 2018.
Moreover, this is an application which involved more
than a hundred
employees and 101 of these employees are from neighbouring countries,
and the corporate worker authorisation certificate
terminates
automatically when the services of employees concerned are terminated
and had to be repatriated within 48 hours thereafter.
Based on this I
was satisfied that the applicant met the requirements for urgency.
Brief
Background:
[12]
The applicant was providing outsourced underground mining services at
the Rustenburg operations of the second respondent. The
applicant
asked this Court to declare that its employees employed at shaft No.1
of the Rustenburg operations of the second respondent
be transferred
to the first respondent in terms of section 197 of the Labour
Relations Act
[2]
(LRA). The
applicant developed uprising and constructs secondary support for the
works, it also supplies labour for emergency work,
sweepings, vamping
and the reclamation of usable materials. In executing its duties, it
supplies its drop race meetings, hand equipment
for employees, then
the second respondent supplies the rock drilling machines and all
consumables for the rendering of the said
services. The applicant has
been providing outsourced mining services to the second respondent
for more than two decades.
[13]
The work that was being done by the applicant was put out to tender
in May 2018. In terms of the tender document, the description
of the
work that was to be provided is “precisely the same by the
applicant,
inter alia
,
the No. 1 Shaft”.
[14]
Following the issuing of the tender, Mr Laurens attended the briefing
wherein one Ms Stephens of the first respondent addressed
the meeting
wherein he said that the successful tenderer would do exactly the
same work that was done by the applicant at shaft
No. 1. Later the
second respondent was appointed as the successful tenderer for shaft
No. 1. Following this appointment, he then
proceeded to dispatch an
email to the first respondent seeking confirmation that the employees
in shaft No.1 would be taken over
by the first respondent in terms of
section 197 of the LRA. He later received the reply to this email
which reads thus
“
Morning [Mr
Lourens]
this is a reply to your
letter below, [the first respondent] have been in discussion with the
employees of JCI Mining at Impala
1#concerning the opportunity of
being employed by [the first respondent]. It was stated to them that
employment can only commence
after the period of termination has
expired which is 30. June 2018. It was also categorically stated to
them that No transfer of
business/services for employees will take
place in terms of section 197”.
Principles
and application thereof
[16]
Section 197 of the LRA provides that if a transfer of the business
takes place, the new employer substitutes the old employer
in respect
of all contracts of employment, taking into account the provision of
this section, one of the purposes of section 197
is to protect the
employment of the workers. In order for
this
section to apply, three requirements that have to be met namely the
must be (a) a business (b) which has been transferred and(c)
as a
going concern.
[17]
The test for determining a transfer as a going concern was laid down
by the Constitutional Court, in the matter of
National
Education Health and Allied Workers Union (NEHAWU) v University of
Cape Town and Others
[3]
where it was held
that;
“
The phrase “going
concern” is not defined in the LRA. It must therefore be given
its ordinary meaning unless the context
indicates otherwise. What is
transferred must be a business in operation “so that the
business remains the same but in different
hands.” Whether that
has occurred is a matter of fact which must be determined objectively
in the light of the circumstances
of each transaction. In deciding
whether a business has been transferred as a going concern, regard
must be had to the substance
and not the form of the transaction. A
number of factors will be relevant to the question whether a transfer
of a business as a
going concern has occurred, such as the transfer
or otherwise of assets both tangible and intangible, whether or not
workers are
taken over by the new employer, whether customers are
transferred and whether or not the same business is being carried on
by the
new employer. What must be stressed is that this list of
factors is not exhaustive and that none of them is decisive
individually.
They must all be considered in the overall assessment
and therefore should not be considered in isolation.
[4]
[18]
In
Rural
Maintenance (Pty) Ltd and Another v Maluti-A-Phofung Local
Municipality
[5]
, the Constitutional Court
reiterated that the purpose of section 197 in that “
is
to protect the employment of workers through the hands of whom a
service or goods are supplied. Their contracts of employment
get
transferred together with the business or entity that provided a
particular service”
[6]
.
In the
Rural
Maintenance
case the court acknowledging that to determine the matter at hand,
regarding “transfer” one has to assess the circumstances
of each case objectively, it refers to the minority judgement in
Aviation
Union
where it was held that,
“
for a transfer to
be established there must be components of the original business
which are passed on that party. This may be in
the form of assets or
the taking over of workers who were assigned to provide the service.
The taking over of workers may be occasioned
by the fact that the
transferred workers
possess
particular skills and expertise necessary for providing the service
or the
new owner may require the workers simply because they did not have
the workforce to do the work……”
[7]
[19]
The principle above is summarised in the Rural Maintenance matter in
the following manner: the enquiry is a factual one,
[8]
such virtual
evaluation must be based on the substance that the form of the
transaction,
[9]
in determining
whether certain factors were present.
[20]
In
casu
,
I conclude that there was a transfer as a going concern which is
covered by section 197 of the LRA taking into account what is
stated
in the following paragraphs, and paragraphs [12] to [14] above.
[21]
In the founding affidavit, paragraph 10.2, the applicant stated the
following undisputed evidence:
“
the precise nature
of services rendered by applicant at No.1 Shaft requires some
education. Whilst applicant does not do action
mining or development
of mining stopes, it does develop drop raising an constructs second
in support for the works. It also supplies
labour for emergency work,
sweepings vamping and the reclamation of usable materials. In
performing these duties the Applicant
supplies its own drop raise
machines and hand equipment for employees, but Second Respondent
supplies the rock drill machines and
all consumables for the
rendering of the said service.”
[22]
In June 2018 the first respondent was already in contact with the
employees of the applicant with the intention of employing
them,
however, not willing to accept them in line with section 197 of the
LRA, as per the email cited in paragraph 15 above.
[23]
The applicant asserted that during the briefing that took place in
May 2018 it was stated that the work that was subsequently
taken by
the first respondent, was to be the same as the one that it was doing
in shafts 1 and 10.
[24]
The applicant, being a party having a burden to set out in the
affidavit what work its employees are doing, and if there are
other
additional employees to state as to what the latter employees will be
doing, in paragraph 10.1 says,
“
suffice it to
say that, as at May and June 2018 Applicant rendered those services
at Second Respondent’s 1,9, and 10 Shafts.
Second Respondent is
in the process of closing its No.9 Shaft and the Applicant’s
employees that do not form part of this
application. An entity other
than First Respondent has been awarded the contract at No. 10 Shaft
and it has agreed to a transfer
of employees in terms of the
provisions of Section 197 of the Labour Relations Act. This shaft
thus does not feature here”.
[25]
As the Constitutional Court stated that “in deciding whether a
business has been transferred as a going concern, regard
must be had
to the substance and not the form of the transaction”.
Following the concessions that were made by the first
respondent in
its answering affidavit and the undisputed evidence of the applicant,
the order that I made above is in line with
the evidence that was
presented before this court by way of the affidavits. The only
inference that can be drawn in this matter
is that, despite the first
respondent having its 350 employees and 25 supervisors, it approached
the applicant’s employees
as stated above, in paragraph 15,
because they “possess particular skills and expertise necessary
for providing the service”
.I am satisfied that the transfer in
this matter is a transfer of part of the applicant’s business,
as a going concern, to
the first respondent.
[26]
It is for the above reasons, that I gave the order in paragraph [1]
above.
_______________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicants: Advocate R G Beaton SC
Instructed
by
:
Van
Der Merwe & Van Der Merwe Attorneys
For
the Respondent: Advocate M Edwards
Instructed
by: E D Ras Burger & Partners
[1]
[1977] 3 All SA
231 (W).
[2]
Act 66 of 1995 as amended.
[3]
2003 (2) BCLR
154; 2003 (3) SA 1 (CC).
[4]
Ibid at para 56.
[5]
2017
(1) BCLR 64 (CC).
(2017)
38 ILJ 295 (CC).
[6]
Ibid at para 99.
[7]
Ibid at para
100.(Own emphasis)
[8]
Ibid at para 111.
[9]
Ibid at para 112.