Nhlapho and Others v Sasol Mining Ltd (JS737/09; JS778/09) [2019] ZALCJHB 260 (19 September 2019)

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[2019] ZALCJHB 260
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Nhlapho and Others v Sasol Mining Ltd (JS737/09; JS778/09) [2019] ZALCJHB 260 (19 September 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of interest to other
judges
case
no: js 737/09
Js
778/09
In
the matter between:
PAULOS
NHLAPHO AND 941 OTHERS

First
Applicants
VICTOR
MABUYAKHULU

Second
Applicant
PETROS
LEMOANE AND 7 OTHERS

Third Applicants
And
SASOL
MINING
LTD                                                                    Respondent
Heard
:
26 January - 3 February 2016; 12 - 30 June 2017; 1 - 11 August 2017;

10 - 13 October 2017, and 26 June 2018.
Delivered:
19 September 2019
Summary:
(Unprotected strike – sit-in underground at end of shifts –
mine safety prevented additional
shifts going underground –
mining safety risks unnecessarily raised by sit-in – strike not
provoked – strikers
surfaced promptly on advice of shop steward
leadership following interdict – management making no effort to
engage recognised
leadership – dismissals inappropriate though
strikers’ misconduct serious)
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The subject matter of this trial concerns the alleged unfair
dismissal
of several hundred workers by the respondent, Sasol Mining
(Sasol) in January 2009 arising from their involvement in an
underground
sit-in which took place on 22 and 23 of the same month.
[2]
There was a long delay between the referral of the dispute in 5
August
2009 and the matter being ready for the greater part of the
trial in 2017. The reasons for the delay appear to have been mainly

the difficulty of the applicants in obtaining sustained legal
representation and  different groups of applicants being
represented
by different sets of attorneys or not represented at all.
[3]
Apart from that, the trial proceedings were very truncated owing to
logistical
and administrative problems in securing appropriate court
venues, which would allow a large number of the individual applicants

to attend the court proceedings given that the nearest permanent seat
of the Labour Court is Johannesburg, nearly 150 kilometres
away from
the Secunda area. Ultimately, it was through the assistance of the
Chief Magistrate and Court Manager at Delmas Regional
Magistrates
Court that the matter was able to proceed at a venue more convenient
for the parties. The court is indebted to them
for their assistance
in this regard. The court also appreciates that Sasol provided bus
transport from Secunda to Delmas for those
applicants near enough to
Secunda to attend the proceedings.
[4]
Considerable
delays were occasioned between the first part of the trial which
focussed mainly on the dismissal of the full-time
shop stewards and
the rest of the trial which dealt with events at each mine.  The
shop stewards had been able to obtain Legal
Aid representation and
were ready to commence proceedings. However, the vast majority of the
applicants were either originally
unrepresented or their attorneys of
record withdrew. It took a while before this larger group were able
to obtain the assistance
of the Legal Aid Board (Legal Aid), with the
support of the court. Without the Legal Aid’s assistance, the
trial would have
been completely unmanageable as the individual
applicants were no longer represented by the union to which they had
belonged at
the time of their dismissal, namely UPUSA, which was
deregistered in October 2009
[1]
.
Having obtained legal aid, the applicants’ attorneys had
understandable difficulties in obtaining instructions from such
a
disparate group of applicants. This was also complicated by the fact
that separate instructions had to be obtained for the events
at the
ten different shafts located at the four mines (Middelbult,
Bosjesspruit, Brandspruit and Twistdraai) where the sit-in took

place. There was no sit-in at a fifth mine, Syferfontein, which is
part of the same Sasol mining complex.
[5]
Although there are similarities between what transpired at each shaft
during the sit-in,
at the initial stages of the trial, the applicants
contended that the circumstances in each shaft warranted separate
consideration.
The court strongly urged the parties try and agree
that evidence be led only in respect of a limited number of shafts
and that
agreement be reached that such evidence would be treated as
representative of what transpired at all shafts, but the applicants

could not agree to this. Accordingly, evidence had to be led on each
of the nine shafts where sit-ins took place.
[6]
Given these logistical issues and the prospect of an inordinately
lengthy
proceedings, the court directed the parties to file witness
statements, in particular with a view to narrowing down the evidence

that had to be led in relation to the events at each of the nine
shafts where the sit-in took place. This assisted to some degree
in
curtailing the time spent on evidence in chief and undoubtedly
reduced the number of trial days required for hearing evidence
in
relation to the events at each shaft. Nonetheless, the process of
hearing evidence from 36 witnesses took seven weeks, with

interruptions occasioned by unavailability of court premises and
other litigation commitments of the parties’ representatives

and the arrangement of the Labour Court roll.
[7]
Evidence was concluded in early October 2017 and the matter was set
down
for argument in the last week of term in December 2017. However,
the bundles of extracts of the record, which the court had directed

to be prepared together with heads of argument were not filed early
enough for the court to consider them and it was necessary
to
postpone the hearing of closing argument. Regrettably, the parties’
representatives were then unable to agree on dates
during the first
term of 2018 when the court offered to reconvene. Consequently,
closing argument were only heard on 26 June 2018.
[8]
A total of 36 witnesses gave evidence in all. Their details
appear as
where their evidence is dealt with in the judgment.
[9]
An issue which still remained unresolved by the time that closing
arguments
were heard was the final list of applicants represented by
the applicant’s attorneys, as Sasol disputed whether some of
the
applicants were ever employed by Sasol. By the time the matter
was argued, the applicants claimed there were 661 of them. Also
unresolved at the close of evidence was the question how the court
was to deal with cases where dismissals were justified on grounds

other than participation in an unprotected strike.
[10]
The applicants and Sasol were directed to agree on the identity of
all the applicants before
judgment was handed down, but despite a
number of directives and a meeting in chambers during the course of
July and August this
year they were unable to achieve complete
agreement and accordingly were invited to make written submissions on
this issue.
The
consolidated cases
[11]
The court was seized with two separate referrals at the commencement
of the trial which
were consolidated: the main dispute was a referral
to the Labour Court by the majority of workers dismissed for
participating in
unprotected strike action (Case no 737/09); the
other referral to court was a consolidation of two separate referrals
to the CCMA.
The first concerned the dismissal of shop stewards who
were members of the Local Shop Stewards’ Council (the LSC) and
the
second, a referral by the shop steward’ coordinator, Victor
Mabuyakhulu, (Mabuyakhulu) (Case no 778/09). The disputes were

originally separate because of the different dates on which the
dismissals of the applicants for participating in unprotected
industrial action and the dismissals of the shop stewards took place.
The shop stewards were charged and dismissed for their alleged

misconduct in instigating, organising and participating in
unauthorised marches which took place on Sasol premises on 19 January

2009 and which Sasol characterised as unprotected industrial action
in breach of the recognition agreement and the Labour Relation
Act,
66 of 1995 (the LRA). The shop stewards alleged the dismissals were
substantively and procedurally unfair. Mabuyakhulu was
also charged
in addition with conduct which could blemish the company’s
image and lead to ‘serious relationship disturbance’
by
‘allowing’ the LSC members to conduct themselves as they
did. The marches of 19 January preceded the sit-in on 22
and 23
January 2009, by which stage the shop-stewards had already been
suspended.
[12]
Despite the consolidation of the cases, after all the evidence
relevant to the dismissals
of the shop stewards had been led, but
before commencing with the evidence relating to the dismissal of the
bulk of the workers,
the disputes concerning the shop stewards’
dismissals were settled and the settlement agreement was made an
order of court,
shortly before the proceedings recommenced in June
2017. Accordingly, this judgment only concerns the dismissal of the
individual
applicants for their alleged participation in the sit-in
of 22 and 23 January 2009.
[13]
Nevertheless, the events which ultimately led to the dismissal of the
shop stewards are
closely connected to the subsequent underground
sit-in although the shop stewards had not yet been dismissed when the
sit-in occurred.
Consequently, although the court is only required to
determine the fairness of the dismissals of the applicants who were
dismissed
on account of their alleged participation in unprotected
strike action on 22 and 23 January 2009, it is nonetheless necessary
for
the chronology of events and in order to understand some of the
reasons why the applicants claim their dismissal was unfair to
traverse the events leading to the suspension of the shop stewards,
who were subsequently dismissed.
Background context
Physical layout of the
mines
[14]
The affected mines generally had one service and two production
shafts. Access to and egress from each mine
could also be achieved
using an incline shaft, which was usually close to the service
shafts. According to John Montgomery (Montgomery),
who was a shaft
manager at Bosjesspruit - Irenedale shaft at the time, and currently
mine manager at Middelbult’s iThembalethu
Mine
, an incline shaft is usually an excavation six metres
wide and three metres high with an incline of 17 degrees or less
which runs
from the coal seam right to the surface. Normally coal is
transported to the surface by a conveyor belt situated in the incline

shaft.
[15]
The service and productions shafts were serviced by lifts known as
cages. Miners enter
the mine and leave the mine using the cages,
which vary in size. A cage operator (cage driver) stationed in the
cage itself controls
the cage. The operation of the cage can also be
controlled by an artisan from the surface of the mine using a control
panel on
the shaft headgear. The cage itself has a solid roller door,
which has to be opened first when the cage descends to the working

level of the mine. Once that door is opened, a second external door
must be opened by means of a handle to gain access to the working

area. The external door is made of steel mesh. If the external cage
door is opened while the lift is in motion, the cage will stop
and
cannot move unless the safety tripping mechanism is overridden. A
recurrent theme in the events of the sit-in at various shafts
was
that some of the cages were immobilized when they were ascending to
the surface because of alleged tampering with the external
shaft
door, which caused safety mechanism to trip. Although roof bolts,
which are long steel rods used for roof supports, would
have been
difficult to push through the mesh of the external shaft door because
the roof bolts are bigger than the gaps in the
mesh, it is possible
if some other instrument is used to open the external door from the
outside.
[16]
The cage doors open underground into an open area known as the ‘shaft
bottom’.
It is large enough for shifts to gather before
surfacing.  Work teams often travel from this area in light
delivery vehicles
(LDVs) to their working areas which can be a few
kilometres away from the shaft bottom. In a number of instances, it
is possible
after walking some distance to reach another shaft of the
same mine. Adjacent to this area, sometimes just off the roadway
leading
to the shaft bottom, there is usually a separate waiting area
where underground workers gather at the end of their shift or the

beginning when they are waiting for the LDV transport. The shaft
bottom area will be dealt with in more detail when mine safety
is
discussed.
[17]
As mentioned, attempts were made to get agreement between the parties
that evidence of
what transpired at some of shafts could be taken as
evidence of what took place at all shafts, but this could not be
achieved.
Accordingly, evidence was led on events at each of the
following shafts:
17.1   At
Middelbult Mine the service shaft was known as main shaft and the
productions shafts were known as west shaft
(where there were four
production sections) and iThembalethu shaft (where there were five
production sections).
17.2   At
Brandspruit Mine the service shaft was also known as main shaft and
the production shafts were known as No.
2 and No. 3 shafts, both of
which had five production sections.
17.3
Twistdraai Mine had two shafts – one of which (Central shaft)
doubled up both as a services shaft and a production
shaft. At
central shaft there were four production sections and at East shaft
there were five production sections.
17.4   At
Bosjesspruit each of the two shafts had its own support services
section. The main shaft had two production
sections and Irenedale
shaft had nine production sections.
[18]
At each of the shafts there was one maintenance shift and two
production shifts.
The shifts rotated and production and
maintenance shifts were not synchronised across the all the mines.
For example, at Bosjesspruit
Mine -Irenedale shaft, the night-shift
of 21 January 2009 was a production shift, whereas at Middelbult Mine
- iThembalethu shaft,
the night-shift was a preparation shift.
However, the scheduled shift hours were the same for all shafts on
all the mines: the
evening shift commenced at 22:00 and finished at
8:00 the next morning; the morning-shift commenced at 7:00 and
finished at 17:00;
and the afternoon shift commenced at 16:00 and
finished at 23:00. There was always an overlap of an hour between
shifts so that
the next shift would go underground before the
previous shift surfaced.
Safety precautions in the
mines
[19]
It was the applicants’ contention that workers participating in
the sit-in largely congregated at the
shaft bottom close to the main
cage at each shaft, which constituted an area of low risk compared to
the risk of accidents near
the working surfaces where mining
operations were underway. At the time of the sit-in, Jean Pierre
Jordaan (Jordaan) was
the General Manager for the
CTL Mines (being the Bosjesspruit, Brandspruit, Middelbult and
Syferfontein Mines). He
testified that there had been
incidents in 1987 and 1993 at Middelbult when fatal methane
explosions had occurred in the production
sections and in a coved
area where methane levels had exceeded 5%, but agreed no explosions
had occurred at a shaft bottom at Sasol.
Methane technicians were
employed between November 2006 and October 2012 to monitor methane
levels.
[20]
Jordaan agreed that according to the safety regulations, the shaft
bottom itself was not
a hazardous area, a point which was also made
by some of the applicant’s witnesses like Hamilton Matwa
(Matwa), an Emco Driver
and an ordinary shop-steward. However, when
explosions had occurred, people who were not in the production
section where the explosion
occurred were also killed.  He
explained that a methane explosion can propagate and that is why he
said in his statement that
the 2009 sit-in was very serious because
of the grave safety implications it held.
[21]
Although he was tested on the fact that no health and safety report
was made during the
two-day sit-in indicating that a safety risk
existed, he stressed that even without knowing the methane levels
that existed during
the strike there was always a potential threat
posed by possible rising methane levels, if for example a ventilation
fan in a section
was not working. Sasol had not convened a health and
safety committee meeting during the sit-in because management’s
focus
at the time had been trying to get the workers to surface owing
to the potential risk they were exposed to by remaining underground.

His focus at the time was dealing with the representatives of the
applicants rather than the health and safety representatives,
even
though safety was a major concern.
[22]
Jabulile Gumede (Gumede), an artisan and supervisor working on the
night-shift of 21 January
at Bosjesspruit – Irenedale shaft,
stated in his written statement that the Tri Flow sensors in the
mine, which monitor the
presence and levels of methane gas, carbon
monoxide and air, are monitored by the control room on the surface
and the personnel
in the control room would be alerted to any
hazardous change in the gas levels and could take steps to ensure the
safety of those
underground such as shutting down the conveyor belt
and ensuring workers moved to waiting areas. Jordaan had responded to
Gumede’s
written statement by saying that the Tri Flow sensors
only measured the volume and quality of air in the section but not in
the
different production phases [the sites where coal extraction
takes place]. The sensors would not pick up a build-up of methane in

a phase, which is where new sources of methane extrusion emanate.
Gumede also testified that at the start of a shift, he and the
miner
on the shift go to each phase or branch of the ventilation system and
test for methane. Moreover, the Tri flow sensors are
only placed by
the return air passage, where air pumped by jet fans out of each
production phase is directed. Methane, being lighter,
will be on the
top level of the stream of air where the Tri Flow sensors are placed
and will cause the sensors to go off if the
methane concentration
exceeds 1.4%.
[23]
Further
,
if a fan stops working in a production phase, the Tri
Flow sensors would not detect that. In fact, there had been up to
three methane
ignitions a year from 2009 to 2013. Jordaan testified
that these ignitions can occur when the methane concentration in the
air
reaches 1.4%. The ignitions that occurred had been contained
within the area they originated because ventilation had prevented the

methane concentration from reaching 5%. When the methane
concentration reaches 5% then a methane explosion will occur if there

is a methane ignition. Gumede could not comment on these incidents,
nor could he comment on the claim that during the sit-in there
were
instances (at the Twistdraai shafts) where fire patrols could not be
conducted and methane gas measurements could not be taken.
[24]
Gumede also testified that, on the night-shift of 21 January 2009 at
Bosjesspruit - Irenedale
shaft tests would have been conducted every
three hours because the night-shift was a production shift during
which methane can
be extruded from the coal face when it is being cut
and coal is extracted. The morning-shift which followed was a
preparation shift
and the gas inspections are only conducted at the
start and end of each shift, which was done. The reason testing was
only done
twice on a preparation shift was that no production work is
done, so no new coal is being cut, which could give rise to methane

seeping from the newly cut coal face.
[25]
On the risk of a section of mine roof being unsupported, which
entails the risk of a rock
fall as well as a methane explosion,
Jordaan’s evidence was that:
“
The
risk of collapse of an unsupported roof can be high in certain areas
because of the long duration before it is supported. Typically,
the
respondent requires that a roof section not be left unsupported for
longer than 48 hours to avoid a possible roof collapse.
In this
instance where there was no mining or supervision of mined areas for
a period exceeding 24 hours, there was an increased
likelihood of a
roof being left unsupported for a period exceeding 48 hours. The
significance of this is: this is not only the
possible harm and
damage caused by a roof collapse, but the fact that this will cause
an explosion in the course of a methane build-up.”
Gumede
responded by stating that:
“
The
night-shift of 21 January 2009 (that is as regards Irenedale) was a
production shift. This means that the morning-shift of the
same day
would have been a prep shift which would have, if it was necessary,
ensured that any unsupported roofs are supported in
preparation for
the production teams of the afternoon and night shift. It is
important to note that the supporting of roofs would
only take place
if more than three phases were unsupported. The morning-shift of 22
January 2009, which shift conducted their duties,
would have again
been a prep shift where unsupported phases would have been reinforced
if same was necessary. Accordingly, given
that the afternoon shift
and night production shifts were not permitted to work, it is not
likely that there would have been any
unsupported phases for the
duration of the sit-in.”
[26]
Jordaan, when asked whether he was aware if there were any
unsupported roofs, indicated
that there will always be unsupported
roofs and the support will take place when a new area is cut. Gumede
disputed this. He claimed
when there is a preparation shift, they
will do all the preparation in order that when there is a production,
there is an early
start to production on the next shift. That
preparation would include putting in supports for early production.
[27]
Gumede also emphasized that the main ventilation supply enters the
mine and fresh air is
supplied to the mine through a fan at the shaft
bottom, as a result of which a build-up of methane gas or excessive
coal dust in
the shaft bottom area is highly unlikely to occur. He
also alluded to an observation made during the
in loco
inspection,
namely it was noticeable that the floor of the mine at shaft bottom
was wet, so there was no dust. Owing to the absence
of sunlight it
could take two to three days for the roadway to dry up if it was not
irrigated and particularly if there was not
much movement up and down
the roadway.
[28]
He further mentioned that welding was done with a cutting torch in
the boiler shop which
is situated near the waiting area at the shaft
bottom where the workers were gathered. That was only possible
because of the good
ventilation in the area. It was common cause,
that the mine roof in that area was also sprayed with a flame
retardant and supportive
coating which enhanced fire safety and
minimised the chance of a rock fall. Additionally, LDVs, which are
not flameproof, are required
to stop at least 100 metres from the
waiting area and there was a minimal risk of one of them causing an
explosion given the ventilation
at the shaft bottom. All devices such
as fans, switches and the like are all flame proof in areas where
there is a risk of methane
gas build-up.
[29]
Another issue concerned whether or not it was customary or lawful for
workers to spend
longer than 12 hours underground when working a
so-called ‘
Ilima
’ or ‘
zama-zama
’
shift, which is usually conducted after a long weekend off or on
public holidays. According to Gumede, under this work system,
workers
essentially ‘sell’ the coal they recover from an
operation like pillar extraction when coal pillars are being
broken
down. This sometimes involved miners starting to work at 14:00 and
stopping work at 06:00 the following day. This specific
example was
not foreshadowed in Gumede’s statement, nor was it put to
Jordaan in cross-examination. Vuyisile Tyokolo (Tyokolo),
an Emco
driver, also testified that it was common for workers on an
Ilima
shift to work longer than 12 hours. Jordaan insisted that even an
Ilima
shift was constrained by the 12-hour rule and he was not
aware of any
Ilima
shifts that were longer.
[30]
Both
Jordaan and Montgomery testified that standard company operating
procedures required workers to leave the mine after 12 hours

underground. Jordaan denied that any shift could extend beyond 12
hours, except in cases of emergencies, which the Mine Health
and
Safety Act
[2]
provided for by
regulation 4.15 of the Minerals Act
[3]
.
That regulation states:
“
4.15 No worker
shall work, or be caused or permitted to work, two or more shifts at
any mine during any continuous period of 24
hours: Provided that this
restriction shall not apply –
(a) to work necessitated
by accident or other emergency; or
(b) to such repair work
to equipment or such service as cannot be delayed without
causing serious
interruption to the operation of the mine; or
(c) to a shift worker
when he changes over shift times or where the shift worker for the
succeeding shift fails to arrive and a
replacement is not immediately
available; or (d) in other cases of necessity permitted by the
Principal Inspector of Mines and
specified in writing to the manager
of the mine”
[4]
[31]
An example put to him was set out in Gumede’s statement where
the latter referred to Emco drivers and
artisans working underground
even beyond 24 hours where there had been a rock fall or machine
breakdown. Gumede’s written
statement cited a number of
situations in which workers might be required to work longer than
twelve hours: when a section is being
moved workers in that section
might work nearly 24 hours and then report back at the normal time
for the next shift; in the event
of a rock fall or machine breakdown,
Emco drivers and artisans might remain underground for more than 24
hours and would be brought
food; the
Ilima
shift could last
for longer than 12 hours or even more than 24 hours. Tyokolo likewise
cited an incident where a new cutting machine
was introduced to the
mine and could not be brought down in the cage, but had to be
dismantled and reconstructed, which entailed
parts being brought down
other shafts and resulted in persons working underground for more
than 24 hours.
[32]
Nevertheless, Gumede did concede that ordinarily a shift would last
10 hours but an artisan may decide to
stay underground longer if
there was a valid reason for doing so, such as in the case of a
machinery breakdown. Even so, the artisan
still had to inform the
foreman on duty who might countermand the artisan’s decision to
stay underground for more than ten
hours. In any event, except in
exceptional circumstances a shift would never extend beyond 12 hours
even if the foreman agreed
it could extend beyond ten. The counter
examples cited by Gumede mostly involved unusual circumstances such a
vehicle breakdown
requiring a worker to walk out the mine or where
someone went missing.
[33]
Bolae Khali (Khali), a full-time health and safety shop-steward, said
that he was not contacted by Sasol
about any health and safety issues
during the underground sit-in, nor did management convey any health
and safety concerns to him
about the workers underground. It appears
from his evidence that he would normally be called upon to intervene
in cases of someone
being injured at work.
[34]
Khali also
claimed that when the sit-in was agreed upon at the meeting on 21
January they did not expect to stay underground longer
than 12 hours.
As a health and safety representative he was aware that the Basic
Conditions of Employment Act, Act 27 of 1997 (the
BCEA) did not allow
workers to “stay underground” for longer than 12 hours,
but that it sometimes did happen if the
company wanted workers to
stay longer. At any rate that is how the proposition was somewhat
inaccurately put to him under cross-examination.
What the BCEA in
fact prohibits is a rest interval between shifts of less than a
twelve hour period.
[5]
Though
the rest period may be reduced under certain conditions stipulated in
s 15(2) of the BCEA, there was no evidence suggesting
that s 15(2)
applied to workers in this case.
[35]
Jordaan and Montgomery both testified that company operating
procedures require workers to surface within
12 hours in cases where
work that has to be completed can be completed by a subsequent shift.
George Hattingh (Hattingh), who at
the time was a shaft manager at
Brandspruit no 3E shaft, confirmed that even though the area at the
shaft bottom near the cage
was a safe area there was also a rule that
personnel should surface as soon as possible after the end of their
shift. Gumede said
that he was not aware of the maximum time a worker
is permitted to remain underground in terms of the company procedures
but that
it was not considered right that a subsequent shift should
repair a breakdown which occurred on a previous shift and supervisors

would show their appreciation towards their team for such extra
effort.
[36]
Gumede was tested on why the workers had remained underground rather
than surfacing, but said he could not
explain why they chose to
remain underground. He agreed that from the time the morning-shift
failed to surface on the afternoon
of 22 January until all workers
surfaced a day later (during which time none of the workers
underground were on duty), he could
not dispute that it was not
possible for normal safety measures to be conducted.
[37]
Additional detail relating to safety matters is canvassed further in
the evaluation section of the judgment.
Chronology of events
leading to the dismissals
Recognition of UPUSA
and subsequent internal divisions
[38]
Following a verification exercise in December 2006, during which
UPUSA members also embarked
on an unprotected strike, it was
established that UPUSA had achieved majority representation in the
bargaining unit and CEPPWAWU’s
representation in the bargaining
unit had fallen to 27 %, which was below the 30% threshold which was
required for bargaining rights.
CEPPWAWU’s bargaining rights
were restored subsequently after they allegedly achieved the 30 %
threshold during the course
of 2008, but the threshold was
subsequently lowered to 23 %. Strauss was adamant that the threshold
was not lowered to accommodate
CEPPWAWU but was the result of a Sasol
wide discussion in which the unions participated and it was agreed
that the threshold should
be lowered.  He was vague about when
this occurred but it seems it must have been in the second half of
2008.  In mid-July
2007, Luthuli wrote to Sasol complaining that
it was still recognising CEPPWAWU and there was a lingering suspicion
that Sasol
favoured CEPPWAWU over UPUSA, and this suspicion had not
been eliminated by January 2009.
[39]
On 23 January 2007, a further unprotected
strike was called by UPUSA members at the Syferfontein mine. It
lasted until 25 January
2007. The striking employees demanded the
reinstatement of those employees that were dismissed for the December
2006 strike and
demanded the immediate removal of certain employees
(such as the HR Manager at the mine, Gabriel Morodi) and several
CEPPWAWU shop
stewards.  In general, all employees who were
found guilty of participating in the strike and who had final written
warnings
were dismissed.
[40]
A recognition agreement with UPUSA was only concluded on 19 April
2007. UPUSA was eventually
recognised as a bargaining representative
of its members in April 2007. It participated in the next round of
wage negotiations,
during which it tabled, amongst other things, a
minimum monthly wage of R 9000.00. A settlement was concluded with
the other unions
but negotiations with UPUSA deadlocked sometime in
October 2007. UPUSA then embarked on a protected strike that lasted a
few weeks.
UPUSA eventually settled on 15 November 2007 on the basis
that UPUSA members would receive the same increase as agreed with the

other unions. Importantly, there was an undertaking given that the
remuneration and benefit differentials between Wage Personnel
(WP)
and Monthly Staff Personnel (MSP) would be investigated and
addressed. Clause 2.1 of the wage agreement, which initiated the
wage
gap reduction process, stated:
“
The
parties agreed to engage in discussions to investigate the wage gap.
As a starting point, the company and the union will compare,

consider, address wage disparities amongst wage personnel workers who
are currently doing the same job. It is also agreed that
the parties
will engage each other immediately after the wage negotiation and
will establish a work group will start on 3 December
2007 and
endeavoured to have a recommendation by 15 February 2008.”
[41]
This became known as the ‘wage gap issue’. Another term
of that agreement was
that the annual service increment would be
implemented in January 2008. According to Strauss it had previously
been paid together
with the general increases in July. Mabuyakhulu
claimed that a demand for a minimum wage of R 9000.00 never
resurfaced during the
wage gap negotiations, but was an issue that
was confined to the 2007 wage negotiations.
[42]
Mabuyakhulu also testified that in November 2007 there had been a
march to the Brandspruit
HR office building by UPUSA workers
demanding the de-recognition of CEPPWAWU. Mabuyakhulu claims he
addressed the workers after
being called by management to the scene
and after he spoke to them they dispersed. Subsequently, Sasol and
UPUSA entered into negotiations
to create a position for him as a
full-time shop steward coordinator. Up till then he had been employed
as a store supervisor.
On 8 November 2007, Sasol had written to
UPUSA’s Evander office about the unauthorised planned march on
the following day,
warning that it could de-recognise UPUSA. On 9
November, Mabuyakhulu persuaded the off-duty workers participating in
the march
to disperse and no disciplinary action was subsequently
taken against them.
[43]
Mabuyakhulu also stated that he had been asked to intervene in
another march organized
on 18 May 2008 and he was able to prevent it
taking place. He claimed that this led to Strauss and he agreeing
that if something
of this nature happened Sasol would inform him so
he could try and intervene. Strauss did not dispute that such an
understanding
was reached.
[44]
The Wage Gap Work Group convened for the first time on 3 December
2007 and the Local Executive
Leadership (LEL) group comprising
Mabuyakhulu, and seven other full-time shop stewards formed part of
the workgroup. The seven
other members of the LEL were Morena P
Lemaoana (Lemaoana); Abner Magagula (Magagula); Peter Mnguni
(Mnguni); Andries Caka (Caka);
Moshitoa Makoti (Makoti); Jonas
Mofokeng (Mofokeng) and Joel Nkosi (Nkosi). Notably, even at this
stage, no UPUSA officials were
involved.
[45]
Later, a smaller wage gap implementation team was formed. The UPUSA
delegates to team were
Lemaoana, Mofokeng and Mabuyakhulu. The Sasol
representatives were Strauss, Ledson Tshikovhi, a Sasol ER consultant
reporting to
Strauss (Tshikovhi), and members of the Finance
Department.
[46]
On 24 June 2008 an agreement on the wage gap project was ultimately
concluded between Sasol and UPUSA. In
practice, the agreement had
been negotiated by the Local Shop Stewards Committee (LSC) and not by
the UPUSA officials who attended
this meeting. Although the
applicants maintained these deliberations were supposed to be
confidential, their contents were leaked
to CEPPWAWU, which angered
UPUSA members because they felt it created the impression that the
CEPPWAWU had been instrumental in
negotiating the arrangement.
Mabuyakhulu believed that management was responsible for leaking the
information to CEPPWAWU because
CEPPWAWU placed a copy of the
agreement on the noticeboards at Bosjesspruit even though there were
no CEPPWAWU representatives
at the meeting. Furthermore, the notice
could not have been placed on the noticeboards without management’s
permission. Strauss
disputed the confidential nature of the
communication saying that this was information that was available to
everyone and the only
things that were confidential were the mandates
of the parties.
[47]
UPUSA members were particularly angered about this because they felt
that Sasol should
no longer be dealing with CEPPWAWU after it was
shown to have less than 30% representative of the workforce.
Mabuyakhulu stated
that the LSC had issued a notice for a march on
1July 2008 and Strauss contacted him to tell him that the march was
not authorized
and asked him to convey this to workers and the LSC,
which he did. Strauss also agreed to send SMSs. The march never
materialized.
[48]
A meeting was convened on 23 July 2008 with UPUSA to try and resolve
the issues arising
from these events and Mabuyakhulu claimed that he
was instrumental in getting Sasol to agree to increase the previously
agreed
wage gap increase in July from 3% to 3.5% as a gesture of
goodwill following the leak, which he claimed Sasol also apologized
for.
Strauss denied this change had anything to do with the leak, but
was merely something acceded to when Mabuyakhulu asked if Sasol
could
increase the 3 % to 3.5 % as ‘a gesture of good faith’.
[49]
Two days later, S’ne Mkhize (Mkhize), the Human Resources
manager, issued the email
circular which supposedly was the cause of
some of the confusion about the wage gap implementation process.
[50]
During 2008, a rift developed between the LSC and officials of UPUSA
in the Johannesburg
office and Evander branch. For various reasons,
this division would ultimately have a significant impact on the
events under consideration.
On 25 to 27 September 2007, UPUSA held
its National Congress in Durban. The congress became the subject
matter of a court case
seeking to invalidate the congress and the
appointment of NEC members at the. The controversy arose arising from
the alleged failure
of the Johannesburg office, where the General
Secretary of the union, Mr E Luthuli (Luthuli), was based to arrange
transport for
all the Sasol delegates to the Congress. In
consequence, a dispute arose whether the national office bearers,
including Luthuli,
had been properly elected. UPUSA members at Sasol
aligned themselves with the Durban branch of UPUSA and sought to
invalidate the
Congress. They also demanded that union subscriptions
be remitted to the Durban branch of the union instead of sending them
to
the head office in Johannesburg.
[51]
The division between the Sasol members of UPUSA, led by the LSC, and
the union officials
in Gauteng became so serious that Sasol had to
adopt a pragmatic compromise so that it could deal with the Sasol
leadership of
UPUSA members in the workforce, without breaching the
recognition agreement with UPUSA. Following a meeting on 6 October
2008,
which had also been called to address the delays in
implementing the medical scheme transfers, Sasol wrote to UPUSA
stating that
it would work with the local executive leadership until
internal leadership matters had been resolved, viz:
“
Due to the
conflictual nature of the communication we have received recently,
this leaves us with no option but to work with the
local executive
leadership until we are assured that the internal leadership matters
have been resolved”.
The
meeting had also been convened to address the delays in the transfer
of workers from one medical scheme to the other.
[52]
In practice, even prior to that, Sasol had in fact been dealing
mainly with the LSC on all matters affecting
UPUSA members working
for Sasol. Strauss testified that the objective of Sasol in deciding
to work with the workplace leadership
was to complete all the
outstanding issues in the wage gap consultations, without getting
involved in the internal dispute within
UPUSA. He confirmed that he
received no objections to this arrangement from Luthuli. Moreover,
the dealings with the elected shop
stewards at Sasol seemed to have
been in keeping with the recognition agreement which acknowledged
them as having negotiating capacity.
[53]
The tussle between UPUSA head office and the LSC over the remittal of
union membership
subscriptions continued and the LSC persisted with
demands that subscriptions be sent to the Durban branch of UPUSA. The
LSC proposed
an amendment to the recognition agreement with UPUSA to
give effect to their demand. Sasol explained that it was bound to
comply
with the recognition agreement and to deal with the elected
NEC leadership of the union as the legal authority of the union,
until
such time as a court declared their election invalid or they
received official notification from UPUSA stating otherwise. Sasol

was nonetheless willing to hold a meeting in December 2008 between
the LSC and the officials in Evander and Johannesburg to attempt
to
resolve the impasse, but Luthuli refused to attend such a meeting and
insisted Sasol continued to deal with the leadership elected
in the
contested Congress elections. The impasse remained unresolved by the
end of 2008 and surfaced again in January 2009 as an
issue causing
discontent.
Negotiation of the
transfer of wage personnel (WP) to monthly staff personnel (MSP) –
The wage gap agreement
[54]
The 2007 agreement led to the establishment of a wage gap team. By
the first half of 2008
the investigation had established what the
differentials between MSP and WP employees were. A gap of
approximately 3% was identified
between Sasol mining WP workers and
the rest of the industry and in addition a differential of
approximately 7% existed within
Sasol mining between WP and MSP
staff. These figures were determined after an independent
consultancy, Blue Horizon, had been engaged
to assist the parties in
determining what the wage gap was.
[55]
As mentioned, an alleged leak about the agreement concluded on the
wage gap project had angered UPUSA members
because they felt it
created the impression that the CEPPWAWU had been instrumental in
negotiating the arrangement. Initially,
the two ‘gaps’ of
3 % and 7 %, were going to be bridged with effect from July 2008 and
January 2009.  As explained
it was ultimately agreed that all
wage personnel should receive a 3.5% increase with effect from July
2008 and that the distinction
between the two categories would be
done away with in January 2009, when a 6.5% adjustment would be made.
The wage gap adjustments
were determined quite independently from the
ordinary general wage increases in July, which were determined by a
collective bargaining.
[56]
According to Mabuyakhulu, the difference of 10% increase was agreed
and included the annual
service increase of 0.5%.  On his
initial version, the 0.5 % increment had not been paid for a number
of years and had played
a huge role in the growing gap between the
workers. He further claimed that, without the knowledge of workers,
the annual 0.5%
service increment, had not been implemented during
the time that CEPPWAWU was the majority union. He clarified this when
giving
his evidence in chief, and explained that the reason why some
workers were no longer receiving the 0.5% increase was because they

had reached a ceiling. In elaborating further on this, Mabuyakhulu
claimed that this resulted in disparities between WP personnel
and it
was decided that the gap had to be narrowed by paying such workers
0.5% for each year they had worked for Sasol. For example,
in his own
case, he had worked 23 years and therefore expected 0.5% increase for
every year he had worked, which would effectively
have increased his
pay by 11.5%. He claimed that this had been agreed to.
[57]
It was put to him that the joint proposal compiled by Blue Horizon
recorded
that “…the 0.5% year of service recognition
scheme creates disparity in the pay levels of workers representing a
lower
versus higher-level position.” Further, the joint
proposal recommended replacing that model to avoid further disparity
all
of which suggested that WP personnel
were
previously
receiving this increase, contrary to Mabuyakhulu’s claims.
However, Mabuyakhulu still defended his interpretation,
that the 0.5%
would be incorporated and paid to workers to increase their salaries
based on their years of service on a retrospective
accumulative
basis.
[58]
Strauss had testified that employees with 30 years’ service
would reach a ceiling and would not receive
further 0.5 % annual
service adjustments. Mabuyakhulu maintained that because black
workers in the past had been employed as contract
workers under the
apartheid pass system in the past, they were not credited for all
their years of actual service. According to
him, this meant that none
of the WP workers would have reached the 30 years ceiling. He
contended that because of the problem this
created it had been agreed
that the notch of 0.5% would be included in the alignment process on
an accumulative basis. Mabuyakhulu
insisted that the sixth objective
of the wage gap project stated in the joint proposal, namely to
replace the “years of Service
recognition model” to
“avoid further disparities in pay levels between workers at
different job categories” meant
that “…the 0.5% it
created the big gap on the narrow versus higher level position
on
the same wage personnel
, because the 0.5%
was only paid to
wage personnel
not to MSP’s.” (
sic
- emphasis
added).
[59]
He also disputed Strauss’s evidence that the inclusion of the
0.5% in the wage gap discussions was
considered but that it was
decided it was not feasible to collapse it with the wage gap
adjustments. Similarly, Mabuyakhulu contended
that in Mkhize’s
email of 25 July 2008, she had not made an error by mentioning that
the “0.5% annual service increment
normally paid to Wage
Personnel will be incorporated in the alignment process.”
Mabuyakhulu interpreted her email to be confirmation
that a
cumulative payment of the 0.5% service increment would be paid.
However, he could not point to any other document in which
this
specific accumulative interpretation of the service increment
adjustment was recorded.
[60]
Mabuyakhulu testified further that the plan to collapse the salary
bands from nine bands to four bands was
due to have been implemented
in January 2009. However, the technicalities of that task, had been
assigned to financial experts
to work out and to present the results
to the project team, which had not happened. According to him the
only issue that was outstanding
was the criteria for progression
between the specific wage bands. That was supposed to be implemented
in January 2009 after the
financial experts had presented the
proposal to the project team for consideration. Strauss had claimed
that it had in fact been
agreed previously with the LSC that it would
not be possible to implement the collapsing of the wage bands in
January as originally
intended. The dispute was declared because of
the failure to establish the new bands and pay scales, together with
new job titles
and the failure to present a career path model.
Mabuyakhulu was somewhat vague when it was put to him in his evidence
in chief
that Strauss had contended it was unreasonable to expect all
those things to be achieved by January 2009. His response was simply

that nothing had been presented to him as the leader of the of UPUSA
representatives as it should have been if there had been a
problem
with implementing all the changes by the end of January 2009.
Instead, according to him the implementation problem was
only
conveyed to LSC members on 15 January, which he interpreted to be
provocative conduct on the part of Sasol and part of a deliberate

strategy to get rid of UPUSA workers and protect the interests of
CEPPWAWU.
[61]
Another feature of the agreement was that WP staff would transfer
from Thebe Med to Sasol Med medical scheme
from 1 October 2008.
Mabuyakhulu interpreted the failure to finalize this by 1 October
2008 as another act of provocation by Sasol.
This process had been
initiated as far back as April 2008, but it was a slow process
because both funds had to approve giving workers
the choice of
transferring and presentations had to be made to workers by
representatives from both schemes so workers could exercise
an
informed choice. As a result, workers who wanted to move to Sasol Med
did not receive their new medical aid cards by 1 October
2008 and
this created a degree of frustration amongst UPUSA members. Strauss
conceded they had received reports of unhappiness
on the part of some
workers because they still were waiting for the membership cards from
Sasol Med, but they were not complaining
that the anticipated
deadline had not been met. Mabuyakhulu claimed that the difficulties
in implementing the medical aid transfer
were never conveyed to the
LSC.
[62]
The LSC eventually went to the ER department to try and get answers
about this. Eventually, they got hold
of Mkhize by phone and she had
told them that she had forgotten all about the transfers. According
to Mabuyakhulu, this caused
members to be furious. Ultimately, even
though the transfer process was slower than anticipated it was common
cause that the transfers
were completed by November 2008.
[63]
Later in his evidence under cross-examination, Mabuyakhulu said that
the financial team
that was looking into the collapsing of the salary
bands was expected to present its proposal to the working team for
consideration
after which it would still be implemented in January
2009. He insisted that even though he could only have attended such a
meeting
after 15 January there was ample time for the payroll to be
altered to give effect to the new salary bands, because the payroll

would already have been structured to give effect to the anticipated
changes. Consequently, if the working team had had met on
19 or 20
January and agreed on the proposed structure it could still be
implemented that month. Mabuyakhulu was adamant that everybody
knew
that the implementation of the wage gap would be done in January,
because that was communicated to workers at all the different
shafts
by management as per the email from Mkhize. He did concede that if
there had been any lack of clarity regarding the Wage
Gap
implementation he could simply have dropped in on Strauss and
discussed it with him, given his office’s proximity to

Strauss’s.
[64]
It is common cause that there was an industry wide practice of paying
MSP staff an additional
0.5% increase annually. Strauss and Tshikovi
testified that workers with 30 years’ service no longer
received the increase.
The practice was then to be extended to WP
staff as well as part of the process of eliminating remuneration
distinctions between
the MSP and WP staff. In the much cited email
circulated by Mkhize on 25 July 2008, it certainly appeared that
there was a perception
that this service increment would be included
in the alignment of wage personnel conditions with those of monthly
staff personnel.
The email, which reported on the initial results of
the wage gap project stated:
“
WAGE
GAP
Our
investigation identified the following misalignment.
A
3% base pay gap (on average) exists between Sasol Mining WWP level
workers and the rest of the industry.
A
difference of up to 7 % exists (on average) between the remuneration
of Sasol Mining WP workers and workers at the same level
in other
Sasol companies.
To
address the anomalies:
The
base pay rate of all WP workers will be increased by 3.5 % to align
with the rest of the mining market with effect from the
1st July
2008.
All
WP workers will be moved to Monthly Salaried Personnel (MSP) category
with effect from 1st January 2009. To facilitate this
transition, a
project team will be put in place to review and align the wage
personnel job level structure (reduction from 9 job
levels to 4),
career paths, progression and related allowances.
The 0,5 % annual
service increment normally paid to Wage Personnel will be
incorporated in the alignment process
. The project team will
communicate and consult with concerned worker representatives during
this process.
As
part of the implementation of the transition from WP to MSP, a
further alignment increase will be paid with effect from 1 January

2009.
MEDICAL
AID
All
our workers in the Wage Personnel category have belonged to Thebemed
Medical Aid. Further to a consultation process with concerned

parties, we will be giving all WP workers an opportunity to choose to
move from Thebemed Medical Aid to Sasolmed Medical Aid with
effect
from the 1st October 2008”. ….
(emphasis
added)
[65]
An important element of the applicants’ case was that the
emphasised portion of the email above, and
in particular they claimed
the Zulu version thereof created confusion about the effect of the
0.5 % service increment being implemented
together with the alignment
process, and this had been a contributory factor in raising workers’
expectations. In the course
of the evidence though, none of the
applicants’ witnesses made reference to the Zulu version of the
document, and the argument
that it exacerbated any ambiguity in the
circular was not pursued in argument.
[66]
Mabuyakhulu agreed with Mkhize’s characterisation of the 3% and
7 % differential
except that he said the figures should have been the
other way round, namely that the 7 % referred to the difference
between Sasol
Mining and the industry and the 3 % to the internal
disparities within the Sasol group. He also agreed that the 10%
differential
was addressed by the increases of 3.5% and 6.5% paid in
July 2008 and January 2009 respectively.
[67]
Strauss testified that even though it had been the intention that the
annual service increase
would simply be subsumed under the wage gap
rectification process, management was advised that it had to be
retained as a separate
adjustment because otherwise it would
‘disappear’ if it was simply incorporated as part of the
adjustment increase
to bring WP in line with MSP. It was a standard
practice in the industry and had to be retained. Accordingly, the 0.5
% service
increment could not be ‘incorporated’ in the
wage gap alignment process and this issue was discussed in subsequent
consultations over the implementation of the wage gap process. He
could not say if this alteration was communicated to workers but
it
ought to have been communicated by the unions and line managers when
they held the daily ‘toolbox talks’ before
workers went
underground. For this reason, no further written communication like
that of 25 July 2008 was issued. The 0.5 % increase
was included as a
term in the 2008/2009 wage agreement because it was an industry
standard.
[68]
Phillipus
Degenaar (Degenaar), who was at the time the shaft manager at
Middelbult West shaft, did not dispute receiving the 25
July email,
but said it was not an issue which he paid much attention to as a
shaft manager, even though he conceded that it would
be of interest
to the workers affected by it. He agreed that it would been the
normal practice for such matters to be conveyed
during safety
meetings at each shaft. However he denied communicating promises of
substantial increases WP could expect to receive
in January 2009 to
close the wage gap, contrary to statements by Hamilton Matwa, at the
time an Emco driver on the Middelbult west
shaft day shift and
Johannes Malgas (Malgas)
[6]
, a
shuttle car operator on the night-shift at the same shaft. They
claimed Degenaar had informed them in Zulu that they could expect
a
substantial sum of money. Degenaar did concede that, on the face of
the July 2008 email, a WP worker would not have been unreasonable
to
expect an increase in January 2009.
[69]
Enoch Zwane (E Zwane), who was a conveyor belt supervisor working on
the morning-shift as a conveyor belt
operator at Twistdraai Central
shaft at the time, understood the pay gap between various levels
would be closed, WP personnel would
migrate to MSP and payment of
monies would be based on workers’ years of service’.
He believed, even though he
was an MSP employee, that he would also
benefit because he would become a shift boss and shift bosses would
become captains. This
contention was not advanced by any other
witness. Zwane did not know how much they would receive but believed
it would be a substantial
amount and said workers had told their
families they were expecting a lot of money in January 2009. He said
that management letters
recorded ‘that we would be paid in
January 2009’. E Zwane claimed information about the wage gap
had been relayed to
them at Twistdraai Central by the shaft manager,
Sekukwane. When he had addressed them he did not say that MSP’s
would not
benefit and E Zwane assumed that if others moved up to his
level, he would move to the next, despite the lack of any
documentation
supporting such an interpretation.
[70]
In his written statement, Thulani Nxumalo (Nxumalo), who was the mine
overseer at Bosjesspruit
main shaft, disputed Khomoetsoeu Molise’s
claim that he had told workers during a safety meeting that they
would be paid
monies relating to the wage gap and had given them a
document to that effect. Molise’s statement asserted that it
was these
communications that led him and his colleagues to believe
they would receive a substantial payment in January over and above
their
normal remuneration. At the time he was an engineer who was
working on the night-shift at Bosjesspruit. However, under
cross-examination,
Nxumalo was slightly less emphatic. He said that
he could not recall addressing workers as alleged, and was confident,
if he had,
that he would have remembered it.
[71]
He conceded that he would have been aware of the wage gap
implementation on account of
receiving communications sent to all
Sasol employees about the issue, but he had no knowledge of the
details thereof. He agreed
that the email of 25 July 2008 would have
created an expectation that they would be paid certain monies in
January 2009, but he
would not have known what the actual amount
would be arising from the alignment of wage personnel with monthly
salaried personnel.
Wage gap
implementation discussions in December 2008 and January 2009
[72]
A meeting was held on 31 December 2008 between representatives of all
unions and Sasol
to clarify what payments were going to be made in
January 2009. It was convened by Tshikovhi to clarify any
misunderstandings concerning
the implementation of the wage gap. He
said the meeting was not intended to conduct any negotiations, which
is why all unions and
not just the UPUSA wage gap team were invited
to the same meeting. During wage negotiations UPUSA had refused to
participate in
the same negotiation forum as CEPPWAWU. Mabuyakhulu
was not at the meeting but was on leave from 24 December 2008 until
10 January
2009.
[73]
It is common cause that the person representing Sasol at the meeting
was its remuneration officer, Chris
Motlaba (Motlaba), who had not
been involved in the wage gap project or in any of the wage
negotiations. Gabriel Morodi (Morodi)
and Tshikovhi were also
present. On UPUSA’s side, members of the LSC were present.
Strauss and Mabuyakhulu were not at the
meeting, as Strauss was on
leave and Mabuyakhulu claims he was also on leave in Durban attending
the court hearing of the application
to invalidate the UPUSA
Congress. According to Tshikovhi, Motlaba advised the meeting that
the increase payable in January 2009
would be 6.5%, plus the 0.5%
service increase which constituted the annual service increment
applicable throughout the mining industry.
[74]
Tshikovhi claimed that in the December meeting he had already
clarified that the 0.5% increase
was an industry norm and would be
implemented automatically in the January payroll. According to the
applicants he only advised
them of the 6.5% increase and that meeting
was adjourned to get clarity on the 0.5% increase. Tshikovhi agreed
that the LSC members
were not happy and it was agreed to hold another
meeting when everyone was back from leave and that the meeting should
take place
before the finalisation of the January payroll. The
applicants gave no direct evidence of what transpired at the first
meeting.
[75]
Mabuyakhulu did give hearsay evidence that he was informed by
Lemaoana, in the course of
receiving feedback about the meeting, that
Sasol was only going to pay the 6.5% increase and not the 0.5% annual
increase. Mabuyakhulu
was clearly piqued that he had not been invited
to the meeting and regarded this as a breach an agreement that no
wage gap meetings
would take place without himself and Strauss being
present. He also saw no need for the meeting. On his return he asked
Strauss
about the meeting and Strauss allegedly advised him that he
would get more information as he was also not aware of the December

meeting.
[76]
Mabuyakhulu said that there was no need for the December meeting as
they had previously
agreed that they would only meet to discuss
communications to the workers about the implementation of the wage
gap and that these
communications were due to be sent out to workers
in January 2009 before they were paid.  Mabuyakhulu claimed that
Strauss
had agreed that he could leave Sasol on 12 January to assist
the legal team in the court case concerning UPUSA’s contested

congress, and that he would only return on 20 January 2009. Strauss
did not recall granting him leave.
[77]
The follow-up meeting took place on 15 January 2009. Unlike the
December meeting at which UPUSA, CEPPWAWU
and Solidarity
representatives were present, the only employee representatives
present were LSC members. Strauss was also there,
but Mabuyakhulu was
still on leave. Strauss claimed that all LSC representative ought to
have received an invitation to the meeting,
including Mabuyakhulu,
and could not say why he would not have received one. Tshikovhi
claimed that Strauss had reiterated that
the 6.5% increase would be
implemented in January and so would the 0.5% increase which was an
industry norm. Strauss was of the
view that the 0.5% adjustment was
not supposed to be part of the alignment process. The other issue
which arose was the implementation
of all the remaining wage gap
items that needed adjustment in order to eliminate distinctions
between MSP and WP staff. LSC representatives
wanted everything to be
implemented simultaneously as a package and not in a staggered
fashion.
[78]
Under cross-examination, Mabuyakhulu claimed that the meeting on 15
January had not even
been convened with LSC members but with ordinary
shop stewards who had never been part of the wage gap process, and he
interpreted
this as another attempt to provoke workers, even though
it was incorrect. The people who should have been invited were
himself,
Mofokeng and Lemaoana. When it was pointed out to him that
the meeting on 15 January was simply an information session and not
to negotiate anything, Mabuyakhulu was insistent that he should
nonetheless have been contacted because it was a meeting concerning

the wage gap. He denied that he was the only person who was provoked
by the meeting being held.
[79]
When Morodi was cross-examined it was suggested that Strauss was
incorrect in characterizing the 0.5% adjustment
as being independent
of the wage gap process. In this regard reference was made to the
joint proposal between management and UPUSA
on the expectations,
objectives and issues on closing the wage gap dated 15 April 2008
which formalized the process. In that document,
the objectives were
set out thus:
“
Objectives
The objectives can be
summarized as follows:
1. To
narrow the gap
between the MSP and the Wage Category minima.
2. To
replace the Wage
category
and integrated into the MSP category. In addition, to
facilitate the eradication of categorizing/labelling certain worker
groups.
3. To attain the
principles of
equity
and
fairness
in basic pay and
benefits.
4. To develop “
new”
job categories
with new reference names based on grading
terminology, hence replacing the current groupings. This will support
objective 2.
5. To design a
career
progression model
per job category/job family that will empower
workers to take responsibility for self-development and provide the
potential to
increase remuneration in an orchestrated manner.
6. To replace the
Years
of Service recognition model [0.5% year]
, hence providing further
disparities in pay levels between workers at different job
categories. Incorporating this benefit into
a career path
structure/ladder may benefit both the employer and worker i.e. skills
pool enhancement and personal growth. Although
the 0.5% principle
applies throughout the mining industry, an alternative should be
considered, like building it into the competency
matrix.
(emphasis
added)
[80]
In its analysis of the status quo at the time the same document said
the following about
the 0.5% adjustment:
“
the
0.5% year of service recognition scheme creates disparities in the
pay levels of workers representing a lower versus higher
level
position.”
[81]
Morodi could not comment on whether Strauss was correct in saying
that the 0.5% adjustment
was not part of the alignment process, but
mentioned that the 0.5% annual service payment was still in existence
when he testified
in the trial.
[82]
It was during the meeting that the LSC orally declared a dispute.
UPUSA representatives
demanded that increases be held back until all
outstanding issues had been resolved and everything would be
implemented as a package.
Sasol would not agree to hold up the
increases that had been previously announced. Strauss also recalled
that they had said they
had a problem with the 0.5% increase.
[83]
Mabuyakhulu said that he did receive details of the meeting when he
returned from Durban
to collect more documents on 15 January 2009. On
Mabuyakhulu's advice, the dispute was reduced to writing and
submitted to Sasol
the next day. Mabuyakhulu had advised them to do
this because clause 8 of the recognition agreement required disputes
to be recorded
in writing. However, on his own testimony, Mabuyakhulu
drafted the dispute letter early on 16 January based on his own
understanding
of the issues and without discussing the letter with
other LSC members. Mabuyakhulu claims that he drafted the dispute
letter with
the blessing of the other LSC members based on
information they had provided him with. When he was tested under
cross-examination
on the subject matter of the dispute, it became
apparent that Mabuyakhulu’s main concern was to ensure that a
written dispute
was recorded so that a meeting could take place where
the issues in dispute could be clarified. He also anticipated that
the interval
between the dispute declaration and the meeting would
give him time to deal with the UPUSA court case. He agreed that with
the
dispute meeting pending, holding the marches on 19 January was
inappropriate, but at the time he was unaware that the marches were

even being planned.
[84]
He gave the dispute letter to Mofokeng and Magagula to submit to
Sasol. The dispute letter
signed by Mabuyakhulu stated:
“
As per our
recognition agreement, clause 8.3 we would like officially to declare
a dispute against the company referring to a meeting
held on 15
January 2009.
The company has failed to
resolve the wage gap as per our agreement. The parties have
previously agreed that the implementation
of the Wage Gap will be
implemented in January 2009 however the company has failed and the
union was excluded from the implementation
process
The following agreement
was not respected by the Company:
basic condition of
employment
Incorporation of WP
categories (9 wage groups) into 4 MSP bands A-D
establishment of new pay
scales
new job titles per job
design a career
path/progression model
implementation date of
wage gap
allowances e.g.
underground allowance as per our agreement
alignment of .5% service
increment on wage gap process.
To resolve the dispute,
the above-mentioned must be implemented immediately.
Yours faithfully
Union Coordinator
Mabuyakhulu”
[85]
Mabuyakhulu claimed that by this stage he was frustrated and
irritated with Sasol for not inviting him to
either of the meetings
concerning the wage gap in December 2008 or the meeting on 15
January. He was also equally frustrated with
the other shop stewards
for not notifying him about the meetings on the wage gap in December
and January and for attending such
meetings without him. In addition,
he was angry with them for not advising him of the planned marches.
What aggravated him further
was that, on 16 January, Strauss replied
to the dispute declaration which he had signed by sending a letter to
Robert Lepheane
(Lepheane) regional organiser at the local UPUSA
Evander office. In the letter, which requested a “prompt
response”,
Strauss offered to arrange a special meeting between
the company and the union in terms of clause 8.3.4 of the recognition
agreement,
even though the time periods for convening such a meeting
in terms of clause 8 had not been exhausted.
[86]
For the sake of clarification, clause 8 of the recognition agreement
between UPUSA and Sasol was a dispute
resolution provision. In terms
of the provision either party could invoke the procedure either
arising from a dispute in a negotiation
process or in relation to a
grievance, which had not been satisfactorily resolved after
exhausting the grievance procedure, or
an unresolved disciplinary
dispute. The close provided for the declaration of the dispute to be
made in writing stipulating the
issues in dispute and the solution
required. The procedure also provided for the other party to serve an
answering statement to
the dispute declaration within seven days and
for the convening of a “special meeting” of the
negotiating committee
to be convened within 10 days of the service of
the answering statement.
[87]
Strauss’s letter also recorded the notice received from the
UPUSA members of their intention to embark,
as Strauss put it “on
industrial action”, on 19 January at 10:00 and 17:00. He
highlighted Sasol’s view that
the action was contrary to clause
13.1 of the agreement and confirmed that Sasol proposed a meeting on
19 January 2009 at 08:00
to discuss matters. Clause 13.1 of the
recognition agreement was a piece obligation provision obliging the
union not to “support,
instigate, encourage or organize any
industrial action” and to ensure that union members did not
take part in industrial
action prior to the exhaustion of all
communication procedures and the dispute resolution provisions of the
agreement.
[88]
Mabuyakhulu felt Strauss was reneging on the agreement to deal with
local leadership and
could not understand why Strauss had not phoned
him as he had previously when such events occurred. In response,
therefore, Mabuyakhulu
sent an email to Strauss at 11:42 on 19
January stating tersely:
“
You
are welcome to have that meeting with Robert as the letter is
directed to him. We are not willing to deal with Robert and Luthuli

anymore.”
[89]
According to Strauss it had previously been agreed that eliminating
the wage gap would
be done in two phases. The monetary issues would
be dealt with first in January. The second phase would address the
type of issue
identified in points 3 to 5 of the dispute notice. The
issue of underground allowances had never been part of the wage gap
discussions.
Apart from that, all the other issues had been agreed
and were due to be implemented in January, so it was not legitimate
to make
demands on these matters. Strauss also testified that some of
these issues such as designing career paths and establishing new pay

scales and identifying job titles were relatively complex matters.
Strauss claimed that a notice was sent by his secretary to LSC

members calling them to a meeting on 19 January at 08:00 to get
clarity on the dispute, though there was no other evidence of a

notice being issued for such a meeting. Under re-examination, he also
confirmed that none of the LSC members or Mabuyakhulu complained
that
they never received any notice of the 08:00 meeting.
[90]
Mabuyakhulu testified that he believed that his dispute letter would
trigger a process
of engagement in terms of the dispute procedure in
the recognition agreement. The first step would be that the company
would respond
in writing within seven days and there after a meeting
would be convened. For that reason, he was not too concerned about
investigating
the issues in dispute or discussing them.
[91]
On the same day he submitted the dispute letter, the other shop
stewards issued a written
notice to Sasol of a marches to Sasol
offices at 10:00 and 17:00 on 19 January 2009 to hand over a
memorandum of their grievances.
As with the initial oral dispute
declaration, Mabuyakhulu had no hand in this initiative. Relations
between Mabuyakhulu and the
other LSC members were poor at this
point. The LSC notice of the marches pre-dated a general meeting of
UPUSA members which was
held on Sunday 18 January 2009.
[92]
Montgomery claimed he was unaware of the dispute declaration at the
time the sit-in commenced
on 22 January 2009.
Workers’
understanding of the wage gap and information available on monthly
payslips and production bonus payslips
Workers’
understanding of the wage gap
[93]
Mvula Ketsekile (Ketsekile), a general worker, who had been employed
since 1995 by Sasol,
claimed that he understood that their earnings
would be adjusted to bring the wages of WP staff closer to that of
the artisans
who and that they would move to MSP. Like other of the
applicants’ witnesses, a recurrent theme was that they would
receive
a 0.5% increase based on years of service which would make a
“substantial difference” and would be paid in January
2009. Because of his years of service, he was expecting that the 0.5%
together with the movement to MSP would amount to “good
money”.
Significantly, he said that “we heard this information from the
LSC during our meetings”, and it was
confirmed in the papers
received from management regarding the 0.5% increase in January 2009.
Later, under cross-examination, he
explained that his understanding
of the 0.5% would be that it would accumulate for every year of
service, so that if someone had
been employed for 20 years, “…
It will be a lot of money: a very beautiful one…and if you
move from wage personnel
to MSP, I do not think there is any person
who receive less than R 10,000.00”.
[94]
Tyokolo understood that, amongst other things, they would receive a
0.5% payment in January,
which he had been informed of by the LSC and
one of the shaft managers, Thabang Monyela. He was unsure how much
would be paid but
believed it would be a “satisfactory amount
of money, given that the payment was to be calculated based on a
worker’s
years of service. Gumede
,
who was an MSP, did
not recall the exact details of what they were told about wage gap
but simply that it was going to be close
so that “there was not
going to be much difference between us”. He also heard of this
through communications from Monyela.
Tyokolo said that he only heard
once from Monyela that they would receive the 0.5% in January, but it
had been said and other meetings
that there was going to be such a
payment and it was mentioned that it was going to be paid according
to years of service at the
mine. Gqadu, also had a similar
understanding  and understood that WP workers would have their
salaries ‘uplifted’
to match those of MSP workers. He had
been employed in 1983. He said this information was originally
relayed to them by Mabuyakhulu
and that it was Mabuyakhulu who had
told them that the wage gap agreement would result in a bigger
improvement “than the
one were engaging in during the year
2007.”
[95]
Molise (Molise), an engineer, had a similar understanding that
with the transition
from WP to MSP they would receive wage gap monies
in January 2009 based on their years of service. He claimed to have
learned this
from Mr W Nxumalo, their mine captain, during
safety/communication meetings. Nxumalo also showed them a document to
that effect.
Molise likewise believed he would receive a ‘substantial
amount’ of money in January over and above his normal
remuneration.
He dismissed as a lie Nxumalo’s claim that he was
in no way involved in the wage gap issues and that he would not have
informed
workers in any manner about the payment of money relating to
that scheme. It was suggested to Molise that there was no basis for

workers to have believed that they were going to get a substantial
amount of money, but Molise insisted that the employer promised
them
that. When pressed as to what he understood that amount to be, he
said he expected about R 9,000.00. He insisted that Nxumalo
had said
they would receive a substantial amount, even though there was
nothing in the letters that been issued by the HR department
which
expressed any specific amounts. Gumede, also said he recalled hearing
that the discussion amongst workers was that they were
going to get
R8000.00 to R9 000.00.
[96]
Matwa confirmed that workers were expecting the 0.5% would be
backdated to the date a worker
started working for Sasol. That,
together with the movement to the MSP scales meant there would be a
lot of money they would be
paid. That is how they had interpreted the
paragraph referring to the .5% annual service increment in the
circular of 25 July 2008.
He also claimed that Degenaar had told them
in Fanakalo in a communication meeting that the 0.5% increase meant
that “
wena ziyenza bomvu mbijan
”, which they
understood meant they were going to receive substantial payments. He
realized that they were not going to get
the increase expected when
they got their bonus payment salary slips in the middle of January.
The salary indicated on the bonus
payslip was unchanged. When he took
it to the HR section, the person there could not explain what it
happened.
[97]
Worker witnesses from Brandspruit shaft no 2 said they heard about
the wage gap from Mkhize,
their shaft manager, Du Preez, and from
Mabuyakhulu. One of those, Jeremiah Bhembe (Bhembe), denied du
Preez’s claim that
he had never spoken to workers about the
wage gap and rejected du Preez’s suggestion that he might have
confused him with
Pieter Strauss.
[98]
Ketsekile claimed that the memorandum of 19 January was drawn up
because after receiving
their payslips they realized they were still
considered to be WP workers rather than MSP. The most important issue
on the memorandum
they attempted to submit to management on 19
January was the first point on the list, namely the immediate
implementation of the
wage gap instead of a phased in implementation.
Hamilton Matwa (Matwa), an Emco driver, also emphasized that workers
wanted the
wage gap implementation to be done immediately as they
expected.
[99]
By the time they received their bonus payslips by 15 January, they
believed the wage gap
benefits were not being implemented. He had
also expected the wage gap program would have improved his bonus
significantly. He
claimed that the union was also confused that the
bonus payslip did not reflect wage gap improvements. Moreover, when
he received
his payslip the letter attached to it explained that the
wage gap monies would only be paid in April 2009. When it was put to
him
that no such letter had been admitted into evidence, he was not
sure if he had told his attorneys about it. He claimed that by 20

January they had already received their monthly payslips, which they
normally received about two days before they were paid. This,

prompted workers to hold a meeting on 21 January 2009 in which it was
decided not to surface after their shift until management
had address
them on the wage gap issue and why the LSC had been suspended.
[100]
Khali testified that:
“
As regards my
understanding of the wage gap, we had been advised that the
respondent had agreed to pay workers wage gap monies.
Although I did
not know the amount that was to be paid, I understand that the amount
would be calculated, taking into account a
worker’s years of
service.”
[101]
He also claimed that the reduction of job levels from nine levels to
four and the alignment of wage personnel
with those new levels, which
was expected to take place in January 2009 had still not occurred,
nor had career paths progression
and related allowances been reviewed
as indicated in the memorandum of 25 July 2008.
[102]
Matwa’s understanding was based on feedback from the LSC that
the gap would be closed and wage disparities
eliminated in January
2009. He also relied on memos issued by Sasol, which he claims were
explained during communication meetings.
In particular, they were
told they would receive the 0.5% payment “to be calculated
based on years of service” and
that Degenaar and another
manager had explained in Fanakalo that “
wenza ziyenza bomvu
mbijan
”, by which they understood they were going to
receive substantial payments.
[103]
A similar sentiment was expressed in a statement by Alfredo Zunguse
(Zunguse), a worker at Brandspruit 3E
shaft who stated, but did not
give evidence at the trial, that:
“
We
were advised by our supervisors during safety meetings that we were
going to receive a lot of money – “sizobabomvu”,

and that our circumstances would go to change in January 2009. We
were advised by Vusi Mehlonkomo, one of our Mine Captains and
one of
the supervisors… Mention had also been made of percentage and
payments being made based on our respective years of
service.”
[104]
A few of the applicants’ witnesses, such as Molise, also were
aware of delay in transferring workers
from Thebemed to Sasolmed,
which caused dissatisfaction amongst workers. Gumede, though not
personally affected also understood
this to be one of the causes of
discontent or dissatisfaction with the implementation of the wage gap
project. He claimed to have
been this from discussions amongst
workers at the waiting places or in the LDVs while being transported
to and from their workstations.
Payslip information
[105]
Information available on salary payments.
105.1
Wages were paid to workers by the 23
rd
of each month
according to Morodi. Before that date trial payroll runs are done.
Semi-payroll runs are done between 11 and 19
th
of each
month, the last being the final one.
105.2
Morodi explained: Semi payroll run is just to check whether
everything owed to workers is booked
on the system, and around the
15
th
supervisors are expected to have the timesheets given
to workers to check whether overtime or callout worked is properly
reflected
before the payroll run.
105.3
Morodi had difficulty explaining the calculations on various payslips
presented and a remuneration
specialist Ms. G Venter from Sasol Group
Services was called as a witness to clarify the payslips. Amongst
other things she was
able to clarify that in December 2018 the payday
was altered from 25th of the month to the 23
rd
of the
month, even though the period for which payment was made, namely from
the 16
th
of each month to the 16
th
of the next,
remained unchanged. McClelland agreed that it would not have been
unreasonable for workers to have expected to see
a change in their
job descriptions on that payslip if they were expecting that.
105.4
Venter also explained that payslips were distributed to the mines on
the 21
st
of each month by Sasol’s Admin department,
and in turn these would be issued to individual workers between the
21
st
and the 23
rd
of the month. McClelland
agreed with these dates, and also agreed that by the time the
night-shift began on 21 January some of
the salary payslips would
have been received. Venter verified that in July 2008 they had been a
general increase of 12% and a wage
gap adjustment of 3.5% paid to WP
personnel.
105.5
Venter was also under the impression that in January 2009 there had
been a collapse of the various salary bands
as part of the wage gap
implementation, which was clearly wrong. Under cross-examination, it
was clear that she really was not
in a position to comment on that
process or on the general progress of the wage gap negotiations and
implementation.
105.6
Venter did confirm that in January 2009 there was an adjustment of
6.5% to each individual’s salary, which
was the second portion
of the wage gap payment and a 0.5% service increase. Venter however
clearly under the impression that the
0.5% adjustment was something
which emanated from the wage gap negotiations, but really was not in
a position to verify that, nor
was she able to comment on the
determination of production bonuses.
105.7
However, Venter did confirm that production bonus payslips were
issued to workers on the 15
th
of each month.
[106]
When Mabuyakhulu was asked to comment on one of the reasons for the
strike given by some of the applicants
in their statements was that
they had not yet received their wage gap monies whereas they would
not yet have received their payslips
by the time they took the
decision to sit-in at the meeting on 21 January 2009, Mabuyakhulu
surmised that they were referring to
what the shop stewards were told
at the meeting on 15 January, namely that certain things would not be
implemented.
[107]
Hugh McLelland, currently head of Business Improvement at Sasol was
personally responsible in his function
of Information Management for
putting together the Sasol Mining Production Bonus Scheme and in
particular the scheme which prevailed
from 1 July 2006 until 2009.
At
the time of the sit-in, all workers received a production bonus
payslip around the 15th of each month and a salary payslip about
the
23 to 25th of each month. The salary payslip would include any
increases in such remuneration.
[108]
The production bonus payslip would reflect what is termed as a "
base
rate
", also referred to as a “
base salary
”.
This is a monetary figure, allocated to groups of workers in
different salary bands and was used as the base for calculating
that
particular group of workers’ production bonuses.
[109]
He explained that an underground section would be set a production
target to produce a predetermined number
of tons in a particular
production bonus month. If they exceeded that production level, then
they will be remunerated at a percentage
factor relevant to that
production. If workers achieved the target they would receive a bonus
calculated at 45% of the base rate.
Beyond that, they would receive a
further 20% of the base rate per ton of coal extracted.
[110]
According to paragraph 5.11 of the production bonus scheme policy:
“
Bonuses are
calculated monthly for the calendar production month. Payment occurs
on the 15
th
day of the month following the month for which
results were calculated.”
When
workers received an increase in their remuneration, this did not
affect the base salary and would not appear in the production
bonus
payslip.
[111]
McLelland gave an illustration using Bhembe’s production bonus
which showed his base was R3740.00,
to which a percentage factor was
applied depending on the production achievement for the month. The
percentage factor was multiplied
by the base rate to calculate the
production bonus payable to him.
[112]
At the time of the unprotected strike, the base salary used in
calculating the production bonus had no impact
on his normal salary
payments for three reasons. Firstly, the base salary was a nominal
base value for all workers within the same
category, to ensure that
their production bonuses were calculated from a common base and to
achieve a fair and equitable calculation
across a group of workers,
even though actual salaries between them differed. Thus all workers
in wage bands L01 to L08 had their
production bonuses calculated on a
base rate of R 3740.00. These bands were the salary bands under which
wage personnel were classified.
[113]
Secondly, because the base salary used to calculate the production
bonus, was not the same as each worker's
actual salary, it ensured
that production bonuses and the determination thereof, remained
independent of the outcome of substantive
wage negotiations.
McClelland testified that the base salary for the purposes of
determining production bonuses was decoupled from
normal monthly
salaries about 20 years previously. Any change in salary would not be
reflected in a change of the base rate of
the production bonus. The
payroll runs for bonuses and salaries are also completely separate
and changes to an individual salary
or occupation would not be
reflected on the bonus payslip. Lastly, it prevented a reverse
calculation of an individual’s
salary using the production
bonus percentage factor.
[114]
For this reason, he did not think it was reasonable of workers to
expect to see a change in their base salary
if they were moved from
WP to MSP. Even if the bands were collapsed from 1 January 2009 that
would not have altered the base rate
for the purpose of bonus
calculations. In any event, as the production bonus was paid in
arrears, the January bonus slip would
not have reflected changes that
only became effective from that month. Even though the bonus payslip
referred to a “base
salary”, McLelland did not think that
it was reasonable of workers to expect to see a change in the rate
because they would
have been aware that previously annual wage
increases would not have affected the base rate, and the term “base
salary”
had been in use for a long time. He did agree that if
workers moved from WP to MSP their base rate would have changed, but
because
the December 2008 production bonus was paid retrospectively
in January 2009, no change would have effected in the base rate that

month.
[115]
By contrast, the salary payslip contained the worker's earnings and
actual salary for each particular month.
When an increase in salary
was due such as the increase resulting from the wage gap agreement
which affected salaries paid at the
end of January 2009, the details
of the new salary would be reflected in the pay slip received
sometime from the 23rd to 25th of
that month.
[116]
Accordingly, a worker would not have been able to determine from the
bonus payslip what their salary would
be. Only when they received
payslips from the 23
rd
onwards could they determined their
salary payment.
Marches, memoranda,
dispute declaration and meetings prior to the sit-in
Notices and letters of 16
January 2009
[117]
On Friday, 16 January, the LSC sent Sasol a notice warning of planned
marches to hand over a memorandum on 19 January. The
same day,
Mabuyakhulu sent Sasol the dispute letter he had drafted. Strauss
replied forthwith to the notice of the marches, warning
that the
marches were regarded as unprotected industrial action and in breach
of clause 13.1 of the recognition agreement.
[118]
In the same letter, which was addressed to Lepiane, and only copied
to Mabuyakhulu, Strauss proposed a meeting at 08:00 on
Monday, 19
January to discuss “the issues of concern”, and also
undertook to arrange a special meeting under clause
8.3.4 of the
recognition agreement to deal with the dispute.
Marches on Monday 19
January
[119]
On Sunday 18 January, at the regular weekly meeting of UPUSA members,
the issue of the implementation of
the wage gap came up. It was at
the meeting that Gqadu said he heard about the non-implementation of
the wage gap. The following
statement of Abraham Mankge was also put
to Montgomery, who was unable to dispute it (though Mankge never
testified to corroborate
it): “On 15 January 2009, we noticed
that the wage gap monies had not been paid.  Workers were
disturbed by this unfortunate
turn of events. As a result, workers
decided to march to Sasol’s management office in Brandspruit to
Strauss and Tshikovhi
to enquire as to where the monies were and why
they had not been paid. It was agreed that the workers would attend
the march when
they are off duty. I attended the march with the
afternoon group, I recall Tshikovhi standing at the door and saying
that he will
not talk to crazy people or dogs. We subsequently
dispersed.”
[120]
Gqadu, who worked at Brandspruit no 2 shaft and joined the march,
also claimed that they were told by Mkhize
and the shaft manager, Du
Preez that salary adjustments would be made to close the gaps between
other workers’ salaries as
well as adjusting Sasol salaries to
industry level. He recalled workers were told that there would be a
back payment of 0.5 % based
on years of service, which “would
amount to more than we had demanded in 2007”. When there was
“talk” in
January 2019 that the wage gap would not be
implemented as per the agreement, workers were angry and decided to
hold a march to
hand over a memorandum. He confirmed that this
information emanated from the LSC. Enoch Zwane also said the march
was prompted
by news that the wage gap implementation would not occur
as previously undertaken, which caused a lot of dissatisfaction.
Under
cross-examination it appeared he assumed workers would not have
embarked on a sit-in if the implementation had occurred.
[121]
Makoko, from Middelbult West shaft also said that he participated in
the march because Sasol had not paid
them what Degenaar had promised,
namely that they would get ‘
izoba bovu’
, which
would be enough money to pay off their debts and to tell their wives
that they had a lot of money. He was expecting to receive
any amount
of R 3000 .00 or more on top of his existing earnings. The LSC had
also said that they would receive their wage gap
payments in January
2009. He added that he had expected to see the change in the bonus
payslip which they received on the 14th
or 15
th
of the
month but did not mention the payslip as the source of his
information in his written statement and could not recall mentioning

it to the person who took his statement in preparation for trial.
[122]
Ketsekile confirmed that weekly meetings of UPUSA members took place
and that there was a meeting held on
18 January 2009 which was
attended by the LSC members but Mabuyakhulu was not present. The
decision to march was taken then, ostensibly
based on the information
of the bonus payslips that had been received, but he could not
dispute that the LSC had already announced
the intention to march to
Sasol shortly after 13:00 on 16 January 2009, which was before the
meeting. He was reluctant to concede
that the only payslips which
would have been issued at that stage were the bonus payslips as the
monthly salary slips were only
issued on the 20
th
of the
month. He was also reluctant to concede that the LSC members would
have known that the wage gap monies would not have been
reflected in
the bonus payslips and ought to have clarified that at the meeting of
18 January 2009, or that they could have corrected
any
misunderstanding he claimed might have existed amongst the members.
He claimed that some workers already had received their
monthly
payslips by the time meeting was held even though he had only
received his bonus payslip. He also alleged that the workers
who had
received payslips in advance advised the meeting that they had not
been paid the 0.5% increment. He could not recall if
they said
anything about 6.5%.
[123]
As mentioned, an email refusing permission for the march was sent to
the UPUSA Evander office and was copied
to Mabuyakhulu, but
Mabuyakhulu claims he only saw the email when he returned to Sasol at
mid-morning on 19 January 2009, the day
of the march. Tshikovhi
agreed that although the letter highlighted that the proposed march
was in breach of clause 13.1 of the
recognition agreement, it did not
expressly state that no permission was granted for the march or that
disciplinary action including
possible dismissal would be taken if
the march proceeded. He also agreed that it had been a practice in
the past for SMS messages
to be sent to workers advising them if
permission to march had been refused. Although the first march had
already taken place by
the time Mabuyakhulu saw the email, he
nonetheless replied to the email at 11:42. Lepheane of the Evander
office never responded
to the email.
[124]
According to Tshikovhi, the marchers participating in the first
march  were not informed that the march
was unauthorised but he
did speak to Morena Lemaoana. He told Lemaoana that no one would
“receive the march” and that
if workers dispersed, a
meeting with the shop stewards would be arranged for the afternoon.
Lemaoana agreed to the meeting and
asked the marchers to disperse.
The marchers’
memorandum
[125]
The memorandum that the marchers wanted to submit did not bear much
resemblance to the contents of the dispute
letter drafted by
Mabuyakhulu. It read:
“
Implementation
of wage gap with immediate effect not in phases
Peter
Strauss must go back where he came from
We
want Bosjesspruit (Irenedale) workers back to work
Away
with Roelf Schoeman away
Away
with three shift system away
Take
our subscription fees to Dbn branch not Jhb branch
De-recognition
of Ceppwawu with immediate effect.”
[126]
Matwa said that the second demand relating to Strauss arose because
the union discussed financial matters
with him and then he went and
discuss them with CEPPWAWU, so they did not trust him. Similarly,
they felt that Schoeman was fuelling
conflict in the same way as
Strauss. Workers did not see why it was so difficult for Sasol to
send subscriptions to the Durban
branch, since it was not Sasol’s
money but the members’ money. The demand related to
de-recognizing CEPPWAWU was because
UPUSA was the majority union and
accordingly CEPPWAWU should not have been entitled to organisational
rights. None of these demands
seemed unreasonable to UPUSA members
because they were bearing the burden of these issues.
[127]
Tyokolo did not understand what was meant by the ‘immediate
implementation’ of the wage gap,
but surmised that workers had
demanded its implementation because they wanted to receive better
wages. He believed that the dismissal
of the Bosjesspruit workers had
been unfair because they had knocked off early to complain about the
three shift system which was
in operation. Apparently, the outgoing
shift was expected to wait at their work stations until they were
relieved by the incoming
shift and they had understood that they
would be paid overtime for this which did not materialize.
[128]
Under cross-examination, Strauss was questioned on the reasonableness
of these demands, on the supposition
that they were the real reasons
why the sit-in took place. Strauss maintained that the staggered
implementation of the wage gap
measures was a matter that been
previously agreed on with the LSC representatives in 2008 and
accordingly was not a legitimate
grievance. It was claimed that the
workers only became aware of it after the shop stewards had declared
a dispute demanding that
the wage gap implementation be done as a
package. In relation to the second demand concerning himself, Strauss
could only say that
no allegation against him of this nature was made
at the meeting on 15 January but he could not account for what might
have been
reported to workers. Although he was not sure of the reason
for the dismissal of workers mentioned in the third demand, his
recollection
of the feedback regarding the Bosjesspruit dismissals
was that they were fair and reasonable and therefore the demand was
an unreasonable
one, but he conceded that he really had no direct
knowledge of the fairness of the dismissals. The demand concerning
Schoeman was
linked to that on account of his involvement in the
dismissals. The three shift system was something that had been
discussed and
agreed upon before it was implemented.
[129]
Strauss was also adamant that the issue of CEPWAWU membership had
been addressed in 2008 when CEPWAWU had
increased its membership to
meet the membership threshold required. UPUSA and the shop stewards
where aware of this, but it is
possible that they had not informed
the members. He insisted that CEPPWAWU had complied with the previous
threshold of 30% before
it was reduced to 23% in 2008, which had been
done with the agreement of all unions. Ketsekile said workers were
advised by the
shop stewards that CEPPWAWU was not a majority union.
Meeting with management
on 19 January 2009
[130]
The arranged meeting between management and the LSC took place at
14:30 on 19 January. Mabuyakhulu was present
at this meeting, having
returned from Durban early that morning. The LSC members refused to
engage with management unless Strauss
left the meeting. They
requested that Strauss should be ‘excused’ from the
meeting due to his statement at the meeting
on 15 January 2009, to
the effect that nothing they could say would change the
implementation of the wage gap in January 2009.
Strauss was heading
up the wage gap project team at that stage.
[131]
The Sasol delegation refused the request and claimed that the LSC
members left the meeting. According to
Mabuyakhulu, it was Mkhize who
refused the request of Strauss to be excused and then she stood up
and told them: “I will
meet you with the workers at the
afternoon march”, after which they left the room. As a result
of her statement, the shop
stewards claimed they assumed there was no
problem with the afternoon march proceeding. Tshikovhi did not recall
Mkhize making
such a statement. According to him it was the LSC
members who stood up when Mkhize said that no one would be asked to
leave the
meeting. In any event, the second march at 17:00 took place
as previously announced. Mabuyakhulu claimed that before Mkhize said

she would meet them at the afternoon march, he had requested an
opportunity to caucus with the other LSC members but she refused
to
permit this. This version was not put to Strauss or Tshikovhi.
Mabuyakhulu also understood Mkhize’s comment to mean
that
the march was approved despite the letter which had been sent to the
UPUSA office. In any event, as he understood the company
had chosen
to deal with UPUSA on the issue rather than with him as it had in the
past, he felt no obligation to make any intervention
regarding the
impending afternoon march.
[132]
Mabuyakhulu also said he had asked the LSC to meet him at his place
that afternoon but none of them pitched
up.
Sasol’s memorandum
on the status of the Wage Gap implementation
[133]
On the same day the marches took place, Sasol issued a memorandum to
all workers explaining its understanding
of the present status of the
wage gap deliberations and implementation, setting out those issues
which had been agreed and those
which remained outstanding. The
portion of the email describing what had been done and what would be
implemented in January 2009
read as follows:
“
As
communicated in July 2008 (Appendix A), in line with Sasol Mining’s
people strategy and in particular, our intent to normalise
conditions
of employment and migrate wage personnel to the MSP category, the
following steps have been taken:
1.
The base pay of all Wage Personnel was increased by 3.5% in July 2008
to align with the rest of the mining
market.
2.
With effect from 1 January 2009, all wage personnel migrated to the
MSP category and a further alignment increase
in base pay of 6.5%
will be paid to all impacted workers.
3.
The following conditions of service will be implemented:
Sick Leave
36 days
Health leave
applicable to dusty areas
1 day vacation leave
additional for ninety hours overtime worked
Acting allowance
0.2% per shift
The
wage gap working team will discuss the following outstanding issues
and the implementation thereof with all relevant stakeholders
during
January 2009:
1.
Unresolved standardization of conditions of service including:
compassionate leave, family responsibility leave,
living out
allowance and food allowance.
2.
New pay scales (min-max) per Salary Band
As
part of the next steps of the wage gap project, the working team with
the cooperation of stakeholder representatives will design

progressive career paths for each salary band. New job titles will
also be discussed and finalized during phase 2 of this project
which
will be completed and implemented in April 2009.
Should
you require more information, please contact your HR manager.”
[134]
Strauss confirmed that all Sasol Mining workers who had email
facilities would have received the document.
Those workers who did
not have access to email would have been orally advised of the
contents by their line managers and the HR
department. According to
Strauss, it was not necessary to mention the 0.5% increase as it was
not part of the wage adjustment process
and any misunderstanding
arising in that regard from the communication on 25 July 2008 had
already been rectified. Mabuyakhulu
did not recall receiving the
memorandum, but noting that the 0.5% was not mentioned in the letter,
he argued that it supported
his contention that there was indeed a
dispute about the issue. Further, he denied that they had agreed that
the wage gap working
team would discuss the outstanding issues
mentioned, because it had been agreed that everything would be
implemented. Thereafter
he changed his testimony to say that the
issues mentioned as outstanding were simply some of the issues that
were outstanding,
but he also conceded that the table recording sick
leave, health leave and acting allowances correctly reflected what
had been
previously agreed. Importantly, he also conceded that any
issues outstanding which were not recorded in the document would not
have had any impact on payments received by workers in January 2009.
[135]
Nevertheless, he resisted the suggestion that the correct positioning
of wage personnel in the new structure based on their
existing job
was the first step which would be followed by the implementation of a
career advancement model, as indicated in paragraph
8 of The
Principles Facilitating Design Decisions contained in the Blue
Horizons proposal. Mabuyakhulu insisted that the proposal
recorded in
the Blue Horizon document dated 15 February 2008, which was signed
was the final word on what had to be implemented.
During this phase,
only three LSC shop stewards were involved: himself, Mofokeng and
Lemaoana. The Finance Department was given
the mandate to implement
the scheme and report back to them on how the wage personnel had been
distributed in the new structure.
When he was tested on anomalies
such as the absence of any mention of the 10% rectification or the
benefits which would accrue
to workers such as sick leave or health
leave which appear in the memorandum circulated by Sasol on 19
January 2009 he agreed that
these could not be derived from the Blue
Horizons document, but were issues that was subsequently agreed on.
Eventually he conceded,
albeit very reluctantly, that the Blue
Horizons document was a recommendation and that it was the project
team that discussed how
those recommendations would be implemented.
[136]
Mabuyakhulu resolutely maintained that the task of slotting wage
personnel into the new salary bands was
something which had been
assigned to the Finance Department and that department was to report
back to the project team to enable
the team to check whether the
Finance Department had done what it was supposed to have done. He
insisted that this was supposed
to have been done so that it could be
implemented in January 2009, but he could not give an adequate
explanation as to why he had
omitted such an important benefit that
was supposed to accrue to wage personnel from his written statement.
The scenario sketched
by Mabuyakhulu of an expected report back from
the finance department on slotting WP workers into wages bands for
final vetting
by the task team was also not canvassed in evidence
with either Strauss or Tshikovhi.
[137]
Mabuyakhulu could not provide an explanation as to why he would not
have raised the fact that such an important
aspect of the wage gap
implementation was not raised with Strauss in January 2009 and why it
did not warrant mention in his written
statement if he had raised it.
[138]
On 19 January Strauss sent a letter to Lepheane, advising that the
UPUSA members had “embarked on
unprotected industrial action
today (19 January 2009) at approximately 09:30” and had failed
to follow the dispute resolution
process and the recognition
agreement. Sasol claimed that it was left with ‘no option’
but to take disciplinary steps
against the full-time shop-stewards.
Accordingly, it invited UPUSA to make representations in that regard.
The letter was also
copied to Luthuli, but was not copied to
Mabuyakhulu, nor was any mention of the decision to embark on
disciplinary action made
to the LSC members who attended the meeting
at 14:30, even though Sasol knew that a second march was planned for
that afternoon.
The afternoon march on 19
January 2009
[139]
No one was present at the HR building to receive the demands when the
afternoon march arrived there and workers waited at
the building
until Mabuyakhulu was called to assist. He addressed the marchers and
told them that a dispute had been declared,
and that Sasol’s
response was awaited. If they could not reach an agreement, they
would take the matter to the CCMA and obtain
permission to embark on
a protected strike. After Mabuyakhulu had addressed them and advised
them to go home they then dispersed.
In his statement, he had said
that Mofokeng had communicated to him that the miners had intended to
sleep at the premises because
nobody was there to receive their
memorandum.
Tuesday 20 January 2009
[140]
The next day, 20 January 2009, the LSC members including Mabuyakhulu
were suspended and charged with inciting
unprotected industrial
action, unauthorised marches and unruly behaviour; not following the
recognition agreement, and participating
in and organising an
unauthorised march.
[141]
According to Mabuyakhulu, Strauss asked to see him. Strauss wanted to
know if he was aware of the marches
on 19 January 2009 and another
one planned for 22 January 2009. He explained that he knew nothing of
the planned march and explained
the circumstances under which he had
learned of the marches on 19 January 2009. Strauss then handed him
his suspension letter.
Tshikovi testified that the decision to
discipline the LSC members was taken because the shop stewards were
identifiable as the
instigators of the march, whereas in other
instances it was usually ordinary workers who were involved. He could
not explain why
the company decided to take action in this form
rather than complaining to UPUSA about the behaviour of accredited
representatives
as provided for in clause 7.9 of the recognition
agreement.
[142]
On the same day, Sasol addressed a second memorandum to all workers,
similar to the one issued the day before. The memorandum
confirmed
Sasol’s commitment to implementing the wage gap normalisation
and warning them not to embark on un-procedural an
unprotected
industrial action. The memorandum also attempted to dispel alleged
rumours that workers stood to receive salaries of
R 9,000.00 as a
result of the wage gap normalisation. Although the principal subject
matter of the memorandum was the march the
previous day, which Sasol
continued to characterise as ‘unprotected industrial action’,
it also dealt to some extent
with the implementation of the wage gap.
As one of the last formal communications from management prior to the
sit-in, it is of
some significance and reads:
“
Colleagues
Further
to communication yesterday about implementation of measures to
address the wage gap normalisation process, we would like
to make all
Sasol mining workers aware of the following:
1.
Sasol mining has and continues to honour its commitments with respect
to implementing the normalisation of
the wage gap as outlined in the
communication distributed in July 2008 and the 19 January 2009. The
6.5% adjustment planned for
January will therefore go ahead as will
alignment of those conditions of service that had been agreed with
the stakeholders thus
far. We continue to be open to constructive
resolution of all the outstanding issues.
2.
The company would like to inform all the workers that the
Labour
Relations Act of 1995
as amended stipulates the process to be
followed when a dispute arise. The company cannot allow any worker to
embark on un-procedural
and unprotected industrial action when
perceived differences arise.
3.
The demonstration took place at the central offices on the 19 January
2009 was unprotected and
serious disciplinary action will be taken
against the union leadership that instigated it with immediate
effect
.
4.
Employees who participate in or allow themselves to be influenced
into participating in further unprotected
industrial action will also
undergo disciplinary action.
5.
It is important for all our workers to be aware that any promises or
references to an amount of R 9000 salary
that would be the outcome of
the wage gap normalisation process, are false and unfounded and have
never been part of any discussions
with the company.
We
reiterate our commitment to continue to sit with the wage gap working
committee around the table
and finalise agreements around the
following issues starting from January 2009.
1,
Unresolved standardisation of conditions of service including:
compassionate leave, family responsibilities leave, living out

allowance and food allowance.
3.
New pay scales (min-max) per salary band.
As
part of the next steps of the Wage Gap project,
the Working Team
with the cooperation of stakeholder representatives will design
progressive career paths for each salary band. New job titles will

also be discussed and finalised during phase 2 of this project which
will be completed and implemented in April 2009, provided
all
stakeholders cooperate.
Should
you require more information, please contact your HR manager.”
(emphasis
added)
[143]
Sasol contends that this was indicative of its
bona fides
in
relation to the wage gap project and its implementation. Ketsekile
denied seeing this memorandum as did Matwa. Mabuyakhulu disputed

Sasol’s assertion that it was acting in good faith. Mabuyakhulu
and the other LSC members were the representatives on the
Wage Gap
Committee. He could not see how Sasol intended accomplishing anything
if they were all suspended. The other shop stewards
who were not part
of the LSC could not take over the LSC’s functions.
[144]
Montgomery said that underground workers would not receive this kind
of email because they had no access
to emails. The communication of
information about the wage gap would be done by the union and would
be placed on notice boards
by HR personnel. He conceded that, in the
absence of the LSC members owing to their suspension, mine managers
would have been one
of the other channels of communication on such
issues. Other channels were the notices placed on the communication
boards and the
ordinary shop stewards who were not members of the
LSC. His own knowledge of progress in the wage gap project was
limited to communications
received from the ER department because he
was not involved in negotiations. He had no direct knowledge of what
the workers understanding
of the project might have been.
Wednesday 21 January 2009
[145]
On 20 January, Molefe had presented a memorandum to Sasol about
marches that UPUSA members intended to hold
on 22 January. Permission
was refused by Strauss in a letter written on 21 January. This time
it was addressed to Mabuyakhulu and
copies addressed to Mofokeng and
Lepheane.
[146]
None of the applicants who testified claimed to have been aware of
the abovementioned circular issued by
management following the march
or of the suspension of the LSC members by the time the meeting was
convened at the eMbalenhle stadium
late on 21 January 2009.
[147]
In his written statement, Khali, who had participated in one of the
marches to Sasol’s management
office in Brandspruit mine on 19
January 2009, stated that when he heard of the suspensions from
another shop-steward on 20 January:
“
This
did not sit well with me, given that these were our leaders and we
were supposed to... This did not sit well with me, given
that these
were our leaders and was supposed to speak for us on the wage gap
issue. This also made me nervous as an ordinary shop
steward, because
I was worried that we too, as leaders, might face suspension and
later on dismissal.”
[148]
Bhembe, learned of the suspension of the LSC members at a committee
meeting. It was that action which led
to an urgent meeting being
called at the stadium.
[149]
Khali said that workers were “visibly upset” following
the news of the LSC’s suspension. At the meeting
held at the
stadium in the township of eMbalenhle on 21 January 2009, workers
“were concerned about who would now speak on
our behalf
regarding the wage gap issue, given that our leaders have not been
suspended.” Even though he was also a shop
steward, the ones
who had been involved in the wage negotiations and the wage gap
process were the full-time shop stewards and
he would not have been
in a position to assume a role in that process.
[150]
They then discussed what could be done to get their leaders to speak
to them and a decision was made that they would report
for work,
perform their duties, and then wait for management to address them.
Likewise, Gqadu said that it was decided that all
shifts would not
surface and Sasol would then realise something was happening and
would be forced to enquire what was going on.
He claimed that it was
a response to Sasol’s failure to accept the memorandum and the
decision was not taken by the LSC.
[151]
Ketsekile testified that the meeting was held to discuss what could
be done to draw Sasol’s attention
to the fact that it had not
fulfilled its promises on the wage gap and also because the union
leaders, who were negotiating the
wage gap issues, had been
“dismissed they felt “unprotected”. He also said
that he had neither seen nor heard
about the memorandum issued by
management on 20 January 2009 by the time the meeting was held on 21
January 2009, and implied that
other workers had no knowledge of it
either.
[152]
Khali said that he could not recall who called the meeting, nor who
took control of the meeting, but did remember other details
of the
meeting and acknowledged that it was a union meeting, which would be
normally have been called by the full-time shop stewards.
He had also
personally summonsed other workers to attend the meeting and
confirmed that hundreds of people attended it. He thought
the LSC
members were there but could not remember. He did not remember seeing
Mabuyakhulu. Ketsekile also did not see Mabuyakhulu
at the meeting.
In any event, Khali was adamant that the LSC members could not have
spoken because they no longer “had a
voice” after their
suspension. He even went so far as to say that even though the
subject matter of the meeting was relevant
to the LSC members, the
meeting was for the ordinary members who did not ask for any advice
or input from them. Somewhat ambiguously,
he said did not know if the
LSC members would have been allowed to speak because they did not say
anything, which tends to confirm
that he knew they were present.
Under re-examination he revised some of his evidence. He became
adamant that none of the LSC members
were present at the meeting,
which was an extraordinary one called by the members, unlike the
ordinary meetings called by shop
stewards. Ordinary meetings always
took place on a Sunday, such as the meeting on 18 January 2009.
He also testified that
nobody saw the need to consult with the LSC,
Mabuyakhulu or the Durban or Johannesburg branches of UPUSA before
the decision was
taken to sit-in.
[153]
Ketsekile confirmed there was a meeting held on 21 January but he did
not see Mabuyakhulu at the meeting. Contrary to one
of the written
statements of the individual applicants, Nelson Nciwa, who said that
the entire LSC including Mabuyakhulu were present
at the meeting,
Mabuyakhulu denied being present and was ambivalent about what he
would have advised workers to do if he had been,
except in so far as
they were contemplating a strike in support of a demand for a large
payment such as R9000.00. He would have
advised them to wait for
information from the finance department and that it would be illegal
to embark on a sit-in for that reason.
[154]
Khali understood the purpose of the meeting to have been to discuss
the suspension of the LSC members and
what would happen because the
LSC representatives were the ones who were negotiating over their
remuneration. They were concerned
how they could approach management
to discuss this issue. Under cross-examination, he confirmed that the
suspension of the LSC
members was the main reason for the sit-in and
the second reason was the wage gap issue. Ketsekile said that they
felt that if
they held a sit-in the employer might “come to
us”. Matwa also understood the aim of the sit-in in similar
terms, though
in his written statement he had only referred to the
suspension of the LSC members. Under cross-examination, he claimed
that there
were some outstanding issues that had to be discussed
between the time of the LSC members’ suspension and the
disciplinary
inquiry and he denied that the only reason for the
sit-in was to exert pressure on management over the suspensions.
[155]
Khali readily agreed that he was not in a position to say what the
problem was about concerning the wage
gap implementation because he
did not participate in those negotiations. He also agreed that
workers were reliant on the LSC members
for information about
problems with the wage gap issue. He had difficulty explaining how
the workers knew about problems with the
wage gap issue if the LSC
members had not addressed the meeting on 21 January 2009. He agreed
that nobody at the meeting suggested
asking the members of the LSC
what the problems were about the wage gap before embarking on a
sit-in over that issue. Nonetheless,
workers were unhappy about the
fact that the suspension of the LSC meant that there was no one who
could negotiate on their behalf
on the wage gap issue. Ketsekile
recalled it being said at the meeting that the LSC members had been
dismissed.
[156]
It was suggested to Khali that the mere fact that the shop stewards
had been suspended and that there was
no imminent development
concerning the wage gap which was going to require deliberations of
the Wage Gap Committee between the
time of the shop stewards’
suspension and their disciplinary inquiries, meant there was no
reason for workers to be so concerned
because at that stage none of
the shop stewards had been dismissed. His response was that workers
understood the suspension as
merely a preliminary step before their
dismissal. Even if that was not necessarily true, that was how
workers perceived it. In
addition, workers were aware that the wage
gap negotiations were supposed to be proceeding in January 2009 and
something was supposed
to happen in that regard during that month.
When it was further put to him that nothing would have happened
between the suspension
of the shop stewards and the first inquiry
scheduled for 23 January 2009, Khali’s response was that the
workers did not know
how long the suspensions would last and when the
shop stewards might return to work. Nonetheless, he agreed that only
the LSC members
would have known if there were any wage gap
discussions due to take place during the period they were suspended.
[157]
Khali recounted that at the meeting held at the stadium, workers
discussed what could be done “to
get their leaders to talk to
them”. Accordingly, they decided “…that workers
would report for work, execute
their duties and then sit at the shaft
station and
wait for management to come and address us
”
(emphasis added). Initially he could not recall who had proposed
this, but under re-examination remembered only that it
was a woman.
Ketsekile had a similar recollection. Under cross-examination, he
said that workers wanted management to explain why
the LSC members
had been suspended and why the wages of WP workers were not being
considered. According to him, buses had simply
taken workers from
work directly to the stadium and CEPPWAWU members on the bus joined
them in the meeting at the stadium.  As
UPUSA members, he said
they had no problem discussing the issue of the suspension of the
shop stewards in the presence of CEPPWAWU
members.
[158]
When Khali initially testified he did not relate the wage gap issue
to any expectation about money, but
simply related that workers were
concerned that their representatives who were dealing with that issue
had been suspended so no
one could represent them properly in such
discussions. It was only after a tea adjournment that he started to
talk about workers
expecting to see a change in their salaries and in
the payslips, which he claimed they had already received by the time
the sit-in
commenced. However, he conceded that the only payslip they
would have received by that stage was the bonus payment slip which
was
issued on 15 January 2009, but he insisted that it would have
reflected the changes that were supposed to take place in their
remuneration
in January. He also conceded that any shortfall in the
expected bonus payment could have been raised with the LSC members at
the
general meeting on 18 January 2009 at which stage they had not
yet been suspended. However, he could not confirm this because he

said he was not at that meeting
[159]
When it was suggested to Khali that workers would not have embarked
on the sit-in if they had seen their
payslips beforehand because
those payslips would have reflected increases in their remuneration,
his response was simply that the
money reflected on the payslips was
not the money they had expected. By implication, they would still
have embarked on a sit-in
despite knowing what the payslips revealed
because the wage gap adjustment payment of 6.5 % was below workers’
expectations.
Personally he was expecting an increase of at least R
2000.00.
Sasol’s attempts to
address the strike immediately before and during the strike
-
Pre-strike warnings.
[160]
Memoranda issued by Sasol prior to the sit-in have already been
mentioned above. How effectively these were communicated to

underground workers is, for the most part, unclear. Nevertheless,
there was evidence that, at more than one mine, it was anticipated

that industrial action might be in the offing and attempts were made
to warn workers against a sit-in before they started their
shifts.
Thus, according
Montgomery,
at Bosjesspruit-Irenedale shaft, the shaft manager services (Johan De
Vries) and Mahlangu, communicated to the night-shift that
there were
rumours of unprotected industrial action and urged them not to engage
in any such unlawful activity. This communication
was translated by
Mahlangu into Zulu. Strauss could not recall if this had been
communicated to the ER department, though it would
have been
appropriate. Similarly, Prinsloo (a mine overseer at Middelbult west
shaft) said that he was told to work night-shift
by Degenaar as there
had been rumours of an unprotected strike.
-
Communications with UPUSA
[161]
Sasol communicated with UPUSA officials by phone and fax during the
morning of 22 January 2009. It appears
that an initial letter from
Mkhize was sent to Luthuli, and possibly copied to Lepheane and
Mpondo (at the Durban office of UPUSA),
which refers to a telephonic
conversation with Luthuli in which he had stated that the workers’
action was not supported
by UPUSA. The letter called on Luthuli to
join forces with the company in resolving the “emergency”
situation as required
by the recognition agreement. The letter also
asked if Luthuli could speak to Mabuyakhulu and “give us
feedback on how you
intend to address the situation from a union
perspective”. Strauss agreed that he had discussed with Mkhize
the possible
role that Mabuyakhulu could play but did not know why
she had mentioned this in the letter to Luthuli. The letter proposed
a meeting
at 15:00 with Luthuli.
[162]
From a letter sent at 10:24 to the Johannesburg office of UPUSA for
Luthuli’s attention, it appears that by then an
arrangement had
been made to meet with him at 15:00 that day. The letter recorded
that it was not safe or hygienic for workers
to stay underground
longer than their shifts and that the sit-in constituted unlawful
strike action “as it is coupled with
a demand of a once off
amount which is not due to them.” The letter also warned of
Sasol’s intention to launch urgent
proceedings in courts to
declare the workers’ conduct unlawful and to compel them to
leave the mine.
[163]
The written response of Luthuli to one of these letters was to the
effect that UPUSA was not a party to
the sit-in at the mine’s
operations and did not support the action. He stated: “This is
a baby of those involved, not
the Union”. He then cryptically
confirmed that “the meeting scheduled for 15:00 to discuss the
situation is [in] respect
of the signed recognition agreement.”
[164]
In spite of the poor relationship between Luthuli and UPUSA
membership at the mine, Strauss believed that
an intervention by
officials would be good because they could give the “correct
message” to members and in any event,
the company was still
bound by the recognition agreement with UPUSA, even if the company
had agreed to work with the LSC on the
wage gap project. He
disclaimed any role in deciding to contact Luthuli, which he claimed
was a decision of the HR department.
He reluctantly conceded that the
ideal persons to address the problem were the members of the LSC and
acknowledged that Mabuyakhulu
had the most influence over the
workers. He also agreed that, at the time, nothing prevented the
company from communicating with
Mabuyakhulu. Further, Strauss
conceded that if Mabuyakhulu had been allowed to go underground it
was possible he could have persuaded
workers to surface. However, he
denied ever receiving any request for Mabuyakhulu to come and address
workers underground, even
though Degenaar recorded such a request
being made at Middelbult at around 11:20 that morning.
[165]
Strauss denied that the company had seized a tactical opportunity of
breaking “the union within the
company” by communicating
with the discredited officials mentioned in the knowledge that they
would distance themselves from
the situation. However, Strauss could
not provide reasons why the company only decided to communicate with
the officials who were
discredited in the eyes of the UPUSA
membership at the mine. As far as he could remember, there was no
consultation with the union
on how to deal with the situation, and
the union distanced itself from the matter.
-
Meeting of senior management shortly after night-shift workers
failed to surface and steps taken by mine management.
[166]
When the night-shift of 21 January 2009 did not surface at 08:00 on
22 January 2009, the ER department issued
an initial memorandum to
mine managers and to the HR department on how to deal with workers
participating in an unprotected industrial
action contained
guidelines as follows:
“
To
Mine Managers and HR Business Partners:
Subject
Process
to deal with workers who participate in unprotected industrial action
including sit-ins, go slows and other acts.
Colleagues
Please
follow the following guidelines in dealing with the unrest situation:
1.
HRBP to keep record of all people taking part in the unprotected
industrial action. A name list to be provided at the end
of each
shift to Pieter Strauss.
2.
HRBP and HRC to prepare warning letters and start setting up
disciplinary process immediately.
3.
Line managers to give an ultimatum to workers participating in the
sit-in underground to come on surface within one hour,
thereafter
they will all receive final warnings and those who are already on
final warnings will be subject to disciplinary process
which may lead
to dismissal.
4.
HR and security teams are on the way to affected areas to assist with
managing the situation and will be there shortly.
Please
keep the central ER team informed of all developments.”
[167]
Strauss’s recollected that this memorandum had only been issued
during the course of that morning
after unsuccessful attempts had
been made to communicate with the night-shift workers, who remained
underground, and before any
attempts were made to contact UPUSA. As
he recalled, management had mandated taking disciplinary action. He
was unclear if the
memorandum had been issued before any ultimatum
had been issued. Sasol regarded the action as unprotected strike
action because
no dispute resolution process had been followed.
Montgomery could not specifically recall seeing the memorandum but
conceded that
the steps outlined in the document were more or less
have been what had been done at Bosjesspruit mine, with the exception
of the
disciplinary steps mentioned. He agreed that if they had taken
disciplinary action at that stage as suggested in the memorandum,
it
would have suggested that a sanction had been determined before the
disciplinary process took place.
[168]
Did Sasol expect managers to engage with workers underground about
their demands or concerns? As Jordaan recalled, during
a meeting with
senior management, the mine managers were instructed to request
workers to surface because they were engaged in
an unlawful sit-in.
The issue of the ultimatums was also discussed in a meeting of mine
managers, which Jordaan attended. At that
time, he said two things
were of paramount interest: Firstly, the potential safety risk of the
sit-in and secondly, how it could
be ended as quickly as possible
because of the risks posed to workers.
[169]
This was consistent with Strauss’s initial recollection of the
meeting held with all mine managers and the managing
director, Mr
Wenhold, once the sit-in became known, though he seemed to think the
decision to issue ultimatums had been taken later.
Later in his
evidence he recalled that managers had also been asked to determine
what the reasons for the sit-in were. He insisted
that his department
did not issue instructions to managers but merely guidance. The
guidance the department provided was that mine
managers should
request the miners to surface so that a discussion could be held with
them to establish what the problems were
and to give further guidance
on how to deal with miners once they were on the surface and while
they were still underground. It
was the mine managers who issued
instructions on what to do.
[170]
As far as Strauss could remember, at the time the senior managers’
meeting was held, the reasons for the sit-in were
not known and it
was recognised that there was a need to establish what the reasons
were. It was agreed that managers should go
underground with HR
personnel and try and find out what the problem was. The need to
persuade workers to surface for safety reasons
and how to minimise
immediate risks was also discussed. Strauss could not explain the
fact that a strike diary kept at Middelbult
Colliery’s mine
manager, van der Westhuizen, did not mention any attempt by
management to ask workers why they were participating
in the sit-in.
[171]
At the managers’ meeting, Strauss claimed feedback was obtained
from the mine managers. He said they
were not aware that workers
wanted management to address them on the demands contained in the
memorandum of 19 January, which marchers
had sought to hand in, but
he agreed that management was aware of those demands. Nevertheless,
they did not know the specific reasons
for the sit-in and they did
not relate the sit-in to the memorandum.
[172]
It was somewhat unclear from Strauss
’
evidence when feedback was received that workers refused to speak to
management, but he seemed to think that it was only after
receiving
that feedback that the first ultimatum was
issued.
He
denied receiving any feedback that workers wanted senior
managers such as Nxumalo, Wenhold or himself to address them, which
was
the version put to him. He agreed that the ER personnel had not
considered going to address workers on the wage gap issues, and

management had not considered calling upon the LSC members to ask
workers to surface.
-
Communication with LSC members
[173]
A major bone of contention between the parties was whether Sasol
should have contacted Mabuyakhulu to intervene
in the strike.
Mabuyakhulu testified that once the LSC members were suspended they
were not even required to come to the gates
at Sasol and sign in with
security, which was the normal practice. He did not have access to
workers at the workplace after being
suspended. Workers became angry
about the suspensions and during the sit-in demanded that management
allow him to come and speak
to them. If Sasol had contacted him to
intervene, the situation would have been normalised and workers would
not have continued
to sit underground. Once again he interpreted
Sasol’s failure to do so as intentional, just as it had failed
to contact him
about the march on 19 January 2009. Similarly, Sasol
knew that there was no point in seeking the assistance of the Evander
or Johannesburg
branches, in which the UPUSA members at Sasol had no
faith. Moreover, Sasol had agreed to deal only with the local shop
stewards
at Sasol. All Sasol needed to do was to contact him.
[174]
Strauss denied receiving any reports from managers that workers had
demanded to be addressed by Mabuyakhulu, but acknowledged
that if he
had received such reports he would have referred the issue to senior
management and probably would have contacted Mabuyakhulu.
He also
conceded that he knew that Mabuyakhulu had influence over the workers
and that he had discussed Mabuyakhulu’s possible
role in
resolving the matter with Mkhize (discussed above). Strauss denied
that the reason Mabuyakhulu was not contacted was because
the company
wanted to dismiss the applicants and had already decided that when it
issued the first guidelines to Managers. In his
opinion, management
had done everything it could have done in the circumstances.
Strauss’s explanation for only attempting
to contact
Mabuyakhulu on 23 January 2009 was to advise him of the interdict.
Mabuyakhulu denied hearing of the interdict from
Strauss or that
Strauss contacted him.
[175]
It seems clear from the evidence of shaft managers such as Degenaar
at Middelbult that, from the time workers were first told
to surface,
a number of workers had demanded that Mabuyakhulu address them. He
could only speculate that Middelbult Mine Manager,
van der Westhuizen
had not conveyed this to Strauss. However, Degenaar was not convinced
that Mabuyakhulu could have convinced
the workers to surface given
they were all in different shafts, which would have made it
logistically impossible for him to address
them simultaneously.
[176]
Mabuyakhulu claimed that he only learned of the interdict declaring
the strike unprotected from Mr M T Xulu,
the general secretary of
UPUSA, who phoned him on 22 January 2009 to tell him that an urgent
interdict had been launched and that
workers had been given an
ultimatum to surface. Xulu asked him if there was anything he could
do to intervene. At that time Mabuyakhulu
was in Pongola. He drove
back to Secunda early the following morning to ensure that workers
knew about the interdict. On his way
he started to contact the local
shop stewards who began answering as the day progressed. He then
asked them to give him phone numbers
of the shafts so that he could
tell workers that he was back and that they should surface. He could
not recall exactly when he
spoke to various people but after he spoke
to one person at a shaft, that individual was expected to go to other
workers and say
“Hey, I have spoken really to Mabuyakhulu. He
said we must surface”. In some cases, people were reluctant to
surface
unless someone underground had personally heard him say that.
[177]
Mabuyakhulu vehemently denied that he only told workers to surface
after the interdict was granted because
they only surfaced in the
afternoon, and that he was aware of the sit-in and was communicating
with them before that but was not
willing to intervene because he was
frustrated by the way Sasol was treating him.
[178]
For the sake of completeness, it must be mentioned that a further
memorandum was issued by Mkhize, at 22:21 on Thursday night,
22
January, but it is unlikely it reached any of the workers who had
embarked on the sit-in given that they were all underground
by then
and it is difficult to see what purpose it could have served at that
stage. It contained update on the strike situation
in which she
referred to the communication of the previous day that industrial
action was anticipated. The memorandum went on to
emphasize that a
salary of R 9000.00 was never promised to workers as a result of the
normal possession of the wage gap process
and that it appeared that
union representatives had promised this to their members. She then
alluded to the previous email of 25
July 2008 and recorded the
following:
“
The
base pay of all WP workers was increased with effect from 1 July 2008
and they had been moved to the MSP category with effect
from 1
January 2009”.
[179]
Somewhat ambiguously, she stated,
“
To
facilitate this transition, a project team will be put in place to
review and align the wage personnel structure [reduction from
9 Job
levels to 4] career paths, progression and related allowances. The 0,
5 annual service increment normally paid to Wage Personnel
will be
incorporated in the alignment process. The project team will
communicate and consult with concerned workers’ representatives

during this process [on] progress for completion in April 2009 as
part of the transition process.”
[180]
Lastly, Mkhize confirmed that a further 6.5% increase was being paid
as part of the alignment process in January 2009. As
mentioned,
Strauss testified that the quoted portion of the circular concerned
was simply not correct, because the 0, 5% service
increase was not
going to be paid later, as it had been paid in January.
-
Ultimatums issued by Sasol:
[181] The memorandum
issued to mine managers and HR Business Partners on the morning of
the sit-in has already been mentioned. That
memorandum called on mine
management to issue the first ultimatum.
[182]
Strauss agreed that when the first ultimatum was issued at about
10:00 on 22 January the workers who would
have been addressed on it
would have been the night-shift workers who did not surface at 08:00.
At the time it had not been foreseen
that workers who had gone
underground for the day shift would have been at their work stations
at the time, but the ultimatum was
directed at those who were
participating in the sit-in at the time. Strauss agreed that the only
ultimatum that was directed at
workers who had reported for the
morning-shift of 22 January and who had remained underground at the
end of their shift, would
have been the ultimatum issued on 23
January 2009. Strauss agreed that it was possible in the light of
Morodi’s statement
in respect of Middelbult mine that the third
ultimatum I have not been communicated to all workers who started
work on the day
shift on 22 January 2009.
[183]
Morodi, who presently holds the position of senior HR manager
responsible for all the Sasol mines, was the
HR Business Partner at
Syferfontein Mine during the sit-in. Because workers at that mine did
not participate in the sit-in he was
re-deployed during and after the
sit-in to assist with HR functions at Middelbult mine.
[184]
He was responsible for distributing the three ultimatums, all of
which were prepared in English and Zulu
by the ER department, to the
three shafts of Middelbult mine.
[185]
The first ultimatum prepared in English and Zulu was received in the
morning on 22 January and was distributed
to
Middelbult
,
Brandspruit and Bosjesspruit mines. The ultimatum at Middelbult read:
“
Memorandum
To
Middelbult Workers
Subject
Mine Manager
Subject
Ultimatum
with respect to participating in the unprotected action currently
underway at Middelbult Colliery
You
have embarked on UNPROTECTED industrial action by staging a sit-in
and refusing to return to surface after your completed shifts
that
ended at 08:30 the morning.
By
taking this action, you’re putting your own safety as well as
the safety of co-workers at risk.
You
are hereby given an ultimatum to come to the surface from underground
by 15h00 hours.
If
you do not come out from underground: disciplinary action will be
taken as follows:
You
will be suspended pending disciplinary action that may also lead to
dismissal
in line with the Sasol Disciplinary code.
Gerritt
van der Westhuizen
Mine
Manager
Middelbult
Colliery”
(original
emphasis)
[186]
The second ultimatum was received around lunchtime in the afternoon
of the same day, having the following format.
“
Memorandum
To

Sasol Mining Workers
Subject
Mine Manager
Ultimatum
with respect to participating in the unprotected action currently
underway at the mines.
You
have embarked on UNPROTECTED industrial action by staging a sit-in
and refusing to return from you completed shift underground.
By
taking this action, you’re putting your own safety as well as
the safety of co-workers at risk.
You
are hereby given an ultimatum to come to the surface from underground
by 15h00 hours
If
you do not come out from underground: disciplinary action will be
taken as follows:
You
will be suspended pending disciplinary action that may also lead to
dismissal
in line with the Sasol Disciplinary code.
Signed
Mine
Manager”
(original
emphasis)
[187]
The third ultimatum was received on the morning of 23 January 2009
and distributed to the three mines mentioned and Twistdraai
was
identical to the second ultimatum, save that it expired at 11:30.
[188]
According to Potgieter, there were also SMS communications sent by
the company to cellphones of workers that were registered
with Sasol
Mining, viz:
188.1
A message was sent at 16:23 on 21 January
2009 (prior to the commencement of the strike) to advise that “
Sasol
Mining didn’t grant permission for your planned action to hand
over a memorandum on 22 January 2009
”.
188.2
A message was sent at 17:21 on 22 January
2009 to advise that an “Expectation has been created that
workers would receive
a R9000,00. This is not true and was never
discussed with the company”.
188.3
A message was sent on 18:02 to advise that
“Any ‘sit-in’, ‘go slow’ etc. is
regarded as unprotected
industrial action and will lead to serious
disciplinary action”. The same message was sent again at 2:19
in the morning.
188.4
A message was sent at 18:33 on 22 January
2009 to advise that “Management is disappointed.  After
many discussions between
UPUSA and Sasol Mining, this conflict has
been instigated without following the agreed process”.
188.5
A message was sent at 19:03 to the effect
that “UPUSA head office does not approve of this unprotected
industrial action”.
188.6
A message was sent at 14:00 on 23 January
2009 to advise that “The union leadership who instigated the
unprotected industrial
action have been suspended and are undergoing
disciplinary action”.
[189]
Enoch Zwane denied receiving any messages and pointed out he could
not have received any when he was underground
because cellphones
could not be taken underground. Even after he surfaced, he claimed he
did not see any SMS messages.
Events during the
sit-in at different mines on 22 and 23 January 2019
Middelbult Mine –
iThembalethu shaft
[190]
Witnesses to events at this shaft were: Lars Steyn (Steyn), the shaft
manager at iThembalethu shaft, Eric
Zwane (Zwane), the underground
manager, and Ketsekile, a general worker.  To some extent,
Morodi also testified in relation
to events at this shaft.
[191]
At this shaft, the production shifts were from 7:00 until 17:00 (the
morning-shift) and from 16:00 until
2:00 (the afternoon shift).
The maintenance shift was from 22:00 until 8:00 (the night shift).
[192]
Steyn testified that on 22 January 2009, sometime after 8:30, Zwane
reported to him that the night-shift workers did not surface
at the
end of their shift.  Steyn reported this to Gerrit van der
Westhuizen (Van der Westhuizen), the mine manager, and they
decided
that Steyn should go underground to request the night-shift workers
to surface. He confirmed with reference to the lamp
room records
which workers had surfaced. Steyn’s account of events was
largely undisputed.
[193]
Morodi said that shaft managers were delegated to address the workers
underground as it was not feasible for Van der Westhuizen
to deal
with all the shafts simultaneously. The feedback received was that
workers believed they had been promised money that had
not been paid
and were unhappy about the suspension of the fulltime shop stewards,
who were negotiating on the wage gap issues
with management. He also
heard they wanted to speak to Mabuyakhulu. He saw nothing which could
have prevented them from speaking
to Mabuyakhulu even though he was
suspended. The feedback was conveyed to Strauss or Tshikovhi. Morodi
agreed his evidence was
at odds with Strauss’s testimony that
the feedback received from mine managers was that workers simply
refused to speak to
them.
[194]
In response to a suggestion that Middelbult mine management could
have contacted Mabuyakhulu, Morodi pointed
out that there were shop
stewards at the mine but dealing with Mabuyakhulu would have to have
been arranged through other channels.
He was not prepared to agree
that if Mabuyakhulu had been called out to Middelbult, the situation
might have been “different”.
[195]
At about 9:15, Steyn descended to shaft bottom, where he found a
group of about 50 night-shift workers in the shaft area.
He was
accompanied by Mr R Ngobeni (the shaft safety officer) who translated
for him. He asked workers to surface and told them
they should follow
the grievance procedure if they had a problem they wanted to resolve.
Under cross-examination, he indicated
that workers had said there was
a problem with the wage gap but he was not aware of the grievance
that had been lodged about it
at the time. Steyn further testified
that he believed that he had relayed this feedback to Van der
Westhuizen. His main concern
was to get workers to surface because it
was a dangerous situation to have workers gathered at the shaft
bottom after their shift
had ended. They were not supposed to be
underground more than 12 hours and were exposed to more hazards while
they remained underground,
irrespective of whether a reportable
health and safety incident had occurred. He and Ngobeni waited until
10:00 while keeping the
cage doors open but none of the night-shift
workers entered the cage by the time they surfaced.
[196]
At around 10:30, Steyn received a letter from Van der Westhuizen,
which was the standard ultimatum from
the ER department. He was
requested to communicate it to the workers at the shaft bottom. He
and Ngobeni went underground again
at approximately 11:00 to
communicate the ultimatum. Workers did not respond in any way to the
ultimatum.  He could not remember
if he handed copies of the
ultimatums directly to workers, but recalls leaving them on the
bonnet of an LDV. As on the previous
occasion, none of the workers
accompanied them to the surface.
[197]
Later, at about 12:20, Steyn telephoned Patrick Xotshana (Xotshana),
an UPUSA shop steward, and asked him
to come to the shaft to speak to
the workers underground and to try and persuade them to surface.
Xotshana agreed and Steyn, Ngobeni
and the shop steward went
underground at about 13:30, taking with them the second ultimatum
which had been received by email shortly
before that. Once again, it
was communicated to the workers at the shaft bottom copies were left
at the shaft bottom. Yet again
no-one chose to surface with them.
Steyn confirmed that workers were getting frustrated and agitated by
that stage. No evidence
to contradict this was presented by the
applicants.
[198]
Steyn was not aware that Xotshana was not part of the LSC and
therefore was not well versed in the wage
gap process. Nonetheless,
in summonsing Xotshana to speak to the workers he felt he had acted
responsibly. He doubted that if Mabuyakhulu
had been called to
address workers he would have managed to go to every shaft in a
reasonable time. However, he did not dispute
that it appeared from
the strike diary kept at Middelbult that it was evident night-shift
workers had requested that Mabuyakhulu
should come and address them.
[199]
Steyn cancelled the afternoon shift and requested the afternoon shift
bosses, Messrs G. Kruger and H Barnard,
to immobilise the continuous
mining (CM) machines and to monitor the shaft area when the day shift
personnel came out at the end
of their shift. Zwane and Steyn
testified that, except for the supervisors and members of Solidarity
that surfaced, none of the
day shift maintenance crew workers
surfaced at the end of the morning-shift. At around 16:10 the UPUSA
shop stewards (Xotshana
and De Villiers) surfaced to fetch food for
the workers underground, but Steyn did not allow them to go back
underground. Although
Zwane had originally suggested that afternoon
shift was cancelled on account of violence, he retracted this version
in his written
statement and claimed that the shift was simply
cancelled because management did not want more workers underground.
However, he
did say it had been decided not to serve a further
ultimatum after the day shift ended because there had been reports of
violence
at certain shafts.
[200]
Ketsekile, who was working on the morning preparation shift, denied
anyone came to address them underground
until 23 January when their
shop stewards, Xotshana and de Villiers, came underground and told
them they must surface because of
the court order. When he was asked
what would have happened if management had come and listened to their
demands as they expected,
he said that they would have been “very
happy” if management had descended “coming with the money
that we wanted”.
[201]
He had arrived at shaft bottom at the end of his morning-shift and
was surprised that the afternoon shift
had not descended. He
remembered that the miner he was working under, one Zanele, surfaced
together with some UPUSA and CEPPWAWU
members. Workers were singing
and dancing, but did not prevent others from surfacing. There were
also striking workers standing
and sitting near the cage, but in his
view there was no reason why anyone would have felt scared to pass
through them to enter
the cage. He also claimed not to have seen any
of the copies of the ultimatums Steyn claimed had left underground.
[202]
When he testified, Zwane modified the claims of violence he had made
in his written statement, withdrawing allegations that
stones were
thrown at the cage when it descended. Steyn requested him to go down
to shaft bottom to address workers, believing
that because he had a
good relationship with them and that they might well listen to him
and be persuaded to surface. Although
he toned down his allegations
of direct acts of violence, he maintained that he had told the cage
driver to surface, not because
objects were thrown at the cage but
because he heard some noise and thought that the same thing might
happen as had happened at
other shafts when objects were thrown at
the cages. The noise he heard was people saying that they should not
come out of the cage.
This version is more consistent with the
evidence he gave during one of the disciplinary inquiries. Ketsekile
denied that there
were any stones in the shaft which could have been
thrown at the cage, though he would not have been at the shaft until
the end
of his morning-shift around 17:00 and he did say he was
positioned in a place sheltered from the draught in the shaft.
[203]
Why Zwane only chose to correct his statement regarding the threats
of violence, when giving evidence at trial, despite having
confirmed
his original statement in his supplementary statement made in June
2017, was not satisfactorily explained. Though he
was reluctant to
concede the good communications he had with workers with workers,
because he was still new at the mine at the
time, he agreed with the
statement of Nomyidi Awu that during the safety or toolbox meetings
he had advised personnel who had reported
for work on the morning of
22 January 2009 that they should not follow the example of what shift
workers at Brandspruit who had
refused to surface at the end of their
shift.
[204]
It is not in dispute that no further ultimatum was served on the
workers on 22 January after Zwane’s attempt to go underground

and speak to the workers between 16:00 and 17:00. Thereafter it was
not considered safe to send anyone down to communicate a further

ultimatum. It is for this reason that no ultimatum was communicated
after Ketsekile joined the strike at the end of the morning-shift

some time after 17:00.  At around 19:00, more of the dayshift
maintenance personnel surfaced using the cage. Steyn testified
that
he cancelled the evening shift. Steyn stated that by 20:30 there were
90 workers who had not surfaced based on the lamp room
records
[205]
Steyn testified that, around 11:00 on 23 January, he received a phone
call from Andries Thetha (one of the workers underground)
who asked
that the shop stewards (Xotshana and De Villiers) be sent underground
to address the workers. Ketsekile claimed the phones
were not working
by then, but Steyn was not challenged about receiving the phone call.
Steyn agreed to the request and the shop
stewards went to speak to
the workers at shaft bottom at around 12:15. However, it was only
around 15h20 that the workers surfaced.
Ketsekile stated that they
had surfaced immediately when Xotshana advised them that there was an
‘ultimatum’ from the
court, but Steyn disputed that.
According to him, they only surfaced about three hours after the shop
stewards went underground.
[206]
Ketsekile did not speak to anyone that was part of the previous
evening shift. He testified that Xotshana
and de Villiers (his shop
stewards) came underground on Friday afternoon to tell the workers
about an urgent matter from court.
Given the timing of the events
that culminated in management’s decision not to go underground
after the incident with Zwane,
Ketsekile was of little assistance on
events prior to him joining the sit-in. No worker that was present
during those events testified.
Middelbult Mine –
West shaft
[207]
Sasol’s witnesses were Phillipus Degenaar (Degenaar), Billy
Henderson, (Henderson) and Marthinus Prinsloo (Prinsloo).
The
applicants who testified were Matwa, and Francis Makoko (Makoko), a
CM operator on the night shift.
[208]
Degenaar was the shaft manager at Middelbult West at the time. He
gave general evidence about the mine which
was not disputed. The main
shaft was a services shaft near to which was an incline shaft by
which the mine could be entered and
exited by foot. The production
shifts were the morning and afternoon shifts and the night-shift did
maintenance work. In the case
of Middelbult West, production occurred
between 6 and 7 km from the shaft, whereas at the iThembalethu shaft
(which at that stage
was a relatively new shaft) production occurred
at a distance of no more than 3 km from the shaft. Because of the
distance of the
production faces from the shaft, workers were
transported to and from the production areas using LDVs.
[209]
The cage at Middelbult west shaft is capable of carrying
approximately 120 people. Accordingly, all the
production teams for a
particular shift would descend simultaneously at the start of a shift
and would all surface together at
the end of a shift. The space at
the bottom of the shaft is large enough to accommodate several
hundred workers at once so that
all of the production teams could
congregate at the bottom of the shaft before dispersing to their
various production sections.
[210]
Degenaar was informed of the march on 19 January 2009 but was not
sure about the details of what had happened.
He was also aware that
the wage gap issue had been raised by workers.
[211]
Degenaar recalled that on 21 January 2009 at about 10:00 the HR
manager had requested the mine to communicate
the memorandum to
workers, warning them not to participate in any further unprotected
action and pointing out that disciplinary
action was planned against
those who participated in the 19 January 2009 march, but that Sasol
remained committed to negotiating
with the wage gap working committee
on job bands and career paths.
[212]
Degenaar communicated the memorandum using an interpreter. The mine
manager had instructed all shaft managers
to communicate the
memorandum before the start of the night-shift on 21 January 2009.
Degenaar was instructed to ensure that a
mine overseer was on duty
during the night shift. Makoko confirmed that the memorandum was
indeed relayed to the night-shift by
Degenaar and was interpreted by
Mr N Delihlazo.
[213]
Prinsloo was the mine overseer working on the night-shift preceding
the start of the sit-in. In the morning
of 22 January 2009 only one
miner surfaced from underground at the end of the shift. The miner
informed Prinsloo that the remainder
of the shift were refusing to
come out. Prinsloo relayed this to Degenaar and went home. Makoko
said that the reason they did not
surface was that they wanted a
representative of Sasol, and not Degenaar, to address them on the
promised monies and also to address
them on the suspension of the LSC
members, which left them not knowing who would represent them in
further discussions. In his
view, if the company representative in
question had come underground and explained the issue of the wage gap
to them, he and the
other workers would have surfaced.
[214]
The mine manager instructed Degenaar to address the night-shift
workers who would not surface. By that stage,
reports were being
received from the other mines that night-shift workers were not
surfacing.
[215]
At about 09:15, Degenaar said he proceeded underground with an
engineer, a mine overseer, the chief foreman
and a communication
facilitator. He told workers to come to the surface and that they did
not have permission to stay underground
after the shift was
completed. He notified them that what they were doing was unlawful
and against company policy. If they had
grievances, those could be
discussed on the surface. Initially, he testified there was no
response from the workers he addressed
to this communication.
However, later he conceded that they had requested to speak to
Mabuyakhulu because they wanted him to come
and tell them when they
would get their money to close the wage gap and said management
should not return without him. Workers
simply shouted this at the
management delegation after the ultimatum had been communicated. It
was repeated on further occasions
when there were communications made
to the workers underground. To Prinsloo it seemed the request was an
unreasonable one because
the situation was the same at all of the
shafts and it would not have been possible for Mabuyakhulu to come
and address them. Although
he claimed that the workers did not say
why they wanted to speak to Mabuyakhulu, he did not dispute entries
in the strike diary
for the mine which showed that they had wanted to
speak to Mabuyakhulu about the wage gap. Later in his evidence he was
less certain
whether workers had specifically said Mabuyakhulu must
come and address them on the wage gap issue. Nevertheless, he was
adamant
he had reported the workers’ demands to Van der
Westhuizen. He could not comment on whether the latter had conveyed
this
to senior Sasol management.
[216]
Makoko testified he could not recall seeing any of the management
delegation mentioned coming down the mine,
but under
cross-examination agreed he had been present when Degenaar addressed
workers in the morning of 22 January and they had
refused to surface.
The reason they did not surface was because they had not received a
response from the Sasol. He also conceded
that he had heard about the
disciplinary steps that could be taken against them, but it did not
concern him enough to even discuss
it with Matwa, his shop steward,
who had joined the sit-in after his morning-shift. Makoko also
recalled ultimatums being thrown
from the shaft and landing at the
shaft bottom area, but could not see who had thrown them.
[217]
Henderson, the chief foreman at west shaft, also testified. In
June 2017 he had provided two written statements. The first one he

admitted he had written without having had the opportunity to refresh
his memory by speaking to the artisans, C Truter (Truter)
and Bheki
Hadebe (Hadebe), who were also involved in the events in 2009. The
two statements are largely similar except that when
he made the first
statement, Henderson surmised that it was the production shift which
had commenced with the sit-in and that therefore
he became aware of
the sit-in when surfacing at 17:00 on 22 January 2009. He had
forgotten that at the time it was actually the
night-shift which was
the production shift and had not surfaced. He stated that:
217.1
At about 06:00 on 22 January 2009, Hadebe and Truter went underground
for the maintenance shift. He instructed
them to surface as soon as
he heard that the sit-in was in progress, but the workers’
underground only permitted Truter to
surface. Hadebe phoned Henderson
and said he was not allowed to surface. Because he was concerned
about Hadebe’s safety,
Henderson went underground to fetch him
accompanied by Joe Monama (Monama). He could not recall the exact
time but thought it must
have been around midday that he descended
for the first time. They found Hadebe at the LDV parking area
together with about 25
other workers, who all wanted to surface.
However, Hadebe did not surface with him because only white personnel
were being allowed
to leave and it was considered dangerous for him
to attempt to do so. Henderson told them to go to the boiler shop and
lock themselves
in there and that food would be brought to them.
Ultimately, Hadebe only surfaced the following day at around 13:00 or
14:00 when
Henderson went underground to fetch another worker, Daniel
Rakhota (Rakhota).
217.2
When Henderson and Monama surfaced they gave Degenaar feedback. They
collected
food and went back down to give it to the people in the
boiler shop. They hid the food in their overalls so as not to attract
attention
as to why they had come down again. As far as Henderson
could recall, that was the second time he went down the mine that
day.
He agreed that he did not witness any violence or intimidation
but simply that “…the people were around the cage
singing,
dancing you know their normal things, but no threatening
violence at that stage”. He also agreed that up to that stage
he
had not seen any violence nor any assault on Monama.
217.3
They took the names of all the workers in the boiler shop so that
they could
identify those who were not willingly participating in the
sit-in. Based on information at hand they believed none of the
participants
in the industrial action had gathered at the main shaft.
Accordingly, if the workers at the boiler shop went there they could
leave
via the incline shaft, so he advised Hadebe to organise an LDV
to drive to the main shaft and leave via the incline. Monama and

Henderson then surfaced.
[218]
It was put to Henderson that Hadebe could not have been underground
because Degenaar said he was part of the team that was
sent
underground at 17:00 on 22 January 2009 to immobilize machines.
Henderson could not explain why Degenaar would have said that,
but he
was certain that Hadebe was part of the group of workers at the
boiler room.
[219]
It was further put to Henderson that it was implausible that there
were 26 persons at the boiler shop because
Degenaar had identified 33
workers underground when he went to address workers and that
correlated with the missing lamps in the
lamp room. Henderson said
that he could only assume that Degenaar took account of the workers
at the boiler workshop and that they
should not have been included in
the 33 names of workers identified as having gathered at the shaft
bottom. Under re-examination,
Henderson was referred to his statement
where he said that Truter and Hadebe had gone underground at 06:00 on
22 January 2009 for
the maintenance shift and it was pointed out that
the headcount done by Degenaar was of the night-shift workers who did
not surface.
Moreover, the lamp room records would not reflect that
Hadebe had not surfaced because the morning-shift would not have been
due
to surface when Henderson met Hadebe at the boiler shop.
[220]
In his evidence at one of the disciplinary inquiries, Henderson was
recorded as saying:
“
Thursday
22 January 2009 at 17:00 I was asked to go down to disable section
machines.  We went underground and saw a lot of
people but we
were not obstructed.  We could go in easily after immobilizing
machines, we came back at boiler shop, we noticed
the group of people
at the boiler shop who did not want, who did not want to be…
[and that] … workers were standing
around the cage.”
[221]
It was suggested to Henderson that this was a more accurate
reflection of what he recalls because he stated
something similar in
his initial written statement, eight years after the events, namely:
“We came out from
section 42
at 17:00 on 22 January 2009. We
were later arrived at the cage; we then saw that there was a lot of
operators at shaft bottom.
While waiting at shaft bottom for the cage
to arrive we then noticed that some sort of strike was going on. When
the cage arrived
and the cage driver opened the door to allow people
into the cage, the striking people allowed myself and Joe Manama to
enter the
cage. They prevented any other people from entering the
cage. Even my black artisans that was with me was not allowed to
leave.
Other artisans were allowed to leave with earlier cages that
happened at shift change.”
[222]
Henderson admitted that it was a long time ago but said that the
evidence recorded at the disciplinary inquiry
was correct and it
referred to the specific incident which occurred at 17:00 when he
descended to immobilize mining machinery.
He denied that his
statement had been modified to exaggerate the levels of violence that
occurred. However, though he might have
forgotten some details he
remembered very well the assault which occurred on 23 January 2009.
[223]
After surfacing on the first occasion, a note was received from the
ER department advising exactly what
had to be communicated to the
workers underground, so Degenaar went underground for the second time
at around 10:30. Again he was
accompanied by a number or workers,
including Messrs Koortzen and Masina. He testified that he read the
ultimatum in English and
Mr Masina read it in Zulu. The ultimatum
advised as follows:
”
You
have embarked on UNPROTECTED industrial action by staging a sit-in
and refusing to return from your completed shift from underground.
By
taking this action, you are putting your own safety as well as the
safety of co-workers at risk. You are hereby given an ultimatum
to
come to the surface from underground… if you do not come out
from underground, disciplinary action will be taken as follows:
You
will be suspended pending disciplinary action that may lead to
dismissal in line with the Sasol Disciplinary code.”
Makoko
once again said he could not recall having seen this delegation
either.
[224]
Around 13:00 the second ultimatum was received and once again
Degenaar went down the mine with three other
workers and issued them
with the ultimatum to leave by 15:00 failing which they would be
suspended and disciplinary action would
be taken which could result
in their dismissal. On this occasion, Degenaar said the atmosphere
was more tense with more workers
having armed themselves with various
metal objects. Again, some workers attempted to close the door to the
store area where they
were addressing the workers but they were
prevented from doing so by one of the managerial staff. As in the two
previous instances,
Makoko had no recollection of this visit either.
The only instance he could recall was that sometime between 12:00 and
14:00, Degenaar
descended and on arrival asked those who wanted to
surface to get into the cage, but no one did and he went to the
surface alone.
Makoko also did not see any of the workers armed with
roof bolts.
[225]
Because of the atmosphere they did not attempt to leave ultimatums on
the shaft bottom and when they surfaced,
Masina, the interpreter,
said he was too afraid to return underground after that and Degenaar
communicated to van der Westhuizen
that there was no point in
attempting further communications because they were being ignored and
the environment was becoming increasingly
aggressive.
[226]
By 14:00 management decided to cancel the afternoon shifts at
Middelbult once the night-shift had not surfaced following the
second
ultimatum Security staff were told to prevent access to the premises
by the afternoon shift. Degenaar clarified that the
actual decision
to cancel the shift was taken by HR and senior Sasol management. The
workers on the afternoon shift were due to
go down at 15:00 before
commencing their shift. The morning-shift workers who were due to end
at 16:00 and surface at 17:00 were
still at their work stations at
that stage.
[227]
Degenaar addressed the afternoon shift at the security gates and
advised them of conditions underground,
that the shift was cancelled
and they should return home. Further, at about 17:00, nine workers
were instructed to go underground
to demobilize the EMC machines,
which they did. However, they could not exit from the west shaft so
they travelled to the main
shaft with the intention of exiting by the
incline shaft. Initially, artisans who tried to exit the main shaft
were assaulted and
had to return underground but eventually all but
the black artisans were allowed to surface at the west shaft, after
forcing their
way to the cage, together with Monama. Degenaar was
confident that Monama was only sent down at 17:00, and could not
explain how
Thsivashe, the underground manager at Middelbult shaft,
could have relied on the alleged assault which only took place at
that
time in taking the decision that is was unsafe for management to
proceed underground again on 22 January 2009.
[228]
Makoko agreed he had seen Monama and Henderson descending in the cage
at some stage. On one occasion they
simply arrived at the shaft
bottom, looked at the workers, and then ascended. On the next
occasion, Monama exited the cage and
continued walking without
communicating with anyone. Henderson ascended again with the cage and
Monama was only seen again when
the cage descended to allow him to
surface. He was unaware of any member of the mine management being
assaulted. Makoko was also
unaware of the machines being immobilized
or of the group of nine personnel arriving underground for that
purpose.
[229]
Degenaar did not experience any tampering with the cage mechanism to
prevent the cage surfacing during his
three underground visits, nor
did he personally witness any assault. He claimed the interference
only took place later. He was
not concerned about artisans being sent
to immobilise machinery because it seemed that from the behaviour of
the workers sitting
in, they would not interfere with supervisors
going in and out of the mine.
[230]
At about 19:00 that evening, Henderson said Hadebe called and told
him that they managed to get to the main
shaft using an LDV. However,
when they got closer to it, people started “jumping out”
of workshops and areas near the
shaft bottom.  He told Henderson
they then abandoned the LDV and ran back along the travelling road
towards west shaft and
were being chased by the workers carrying roof
bolts. Eventually, they walked back about 6 kilometres to the boiler
shop and locked
themselves in again.
[231]
When Prinsloo returned for night-shift of 22 January, workers were
still underground. He was informed that
no production was taking
place and was also aware that Degenaar had given instructions to
Henderson and others to immobilize the
continuous mining machines.
However, he did not know if that was because it was anticipated the
night-shift would resume work,
when their next shift began, as
Degenaar had testified. Degenaar testified that management had heard
a rumour that the nightshift
might resume working when the
night-shift normally began. That would have been completely
unacceptable as they had already been
underground for 24 hours. Hence
the decision was taken to immobilise the machinery.
[232]
At around 22:00 that night, when Prinsloo went underground, workers
were gathered at the shaft bottom and were not working.
He testified
that he had been instructed to monitor the night shift. He was
unaware that the night-shift workers who had remained
underground
since their last shift intended to resume their duties, but was aware
that the production machines had been immobilized.
[233]
At about 02:00 on 23 January 2009, Degenaar received a phone call
from personnel at the cable shop who wanted
to surface. He descended
with the cage and saw strikers singing and stamping roof bolts on the
floor. Four female miners and two
contractors entered the cage.
Nobody else responded positively to his request to surface with them.
Inasmuch as he was able to
collect individuals on that occasion, he
conceded that it would have been possible to leave ultimatums at the
shaft bottom or to
communicate with workers assembled there. However,
he was reluctant to concede that this implied that an ultimatum could
have been
served on the day shift which ended at 17:00. He agreed
that, apart from what he interpreted as intimidatory stamping of roof
bolts
against the floor, he did not see other violent or aggressive
behaviour on that occasion. Once again, Makoko could shed no light
on
this because he was not near the cage at that time of the morning.
[234]
About an hour later, at 03:00, Prinsloo received another call from an
unknown individual who wanted to be
collected from underground. When
the cage arrived at the shaft bottom it appeared to him that the
strikers were very aggressive
in the way they were striking the roof
bolts on the floor. He interpreted this as intimidating behaviour. On
opening the cage doors
for people to enter the cage some of the
strikers pushed the doors closed thereby preventing him from opening
them and consequently
no one could enter the lift. He identified four
individuals who had forced the cage door closed, namely one C
Mahlatsi, Makoko,
Paul and Matwa. Makoko denied even being in the
vicinity of the cage at that time and claimed he was in the workshop
with Matwa.
[235]
Matwa agreed he had phoned the surface to send the cage down to fetch
a sick worker. He denied that any
person wishing to go to the surface
required the permission of the strikers, or that the request had to
go through him. He maintained
that anyone who wished to go to the
surface could summons the cage. He did admit that he played the role
of communicating with
certain members of management and keeping the
workers informed of the status of the underground sit-in, but denied
having been
in contact with Mabuyakhulu or that he had received a
call from him on 23 January 2009 instructing workers to surface. He
also
disputed Makoko’s statement to the extent that it
suggested that he had been there the whole day at the shaft. However,
he
did disclose that he had phone numbers of full-time shop stewards
from Middelbult West on speed-dial who could be reached on their
cell
phones from the underground phone.
[236]
On returning to the surface, Prinsloo said he received yet another
call at his office from miners underground
requesting to be
collected, but he told them the situation was very tense and that he
was afraid of his and their safety if he
came down. He advised them
to stay in a safe place. Even though there was no violence, the
environment was intimidating and strikers
were getting aggressive,
such that the situation could turn violent at any time. He did not
agree that simply because he was able
to fetch some people on the
first occasion that it would have been feasible to serve ultimatums
on the workers gathered at the
shaft bottom after the day shift
ended.
[237]
Henderson testified that at about 09:00 on 23 January 2009 Truter and
a miner, J van Aswegen (van Aswegen), went underground
to do fire a
patrol in all the sections. Makoko confirmed this in his written
statement in greater detail but at the trial could
not recall seeing
anyone except Monama. Henderson claimed the team were not allowed to
surface and called him to fetch them.
[238]
When Henderson got to the bottom of the shaft, the workers stopped
him from opening the main gates of the
cage. Some workers were
pushing roof bolts through the cage gate to try and stop them from
opening the cage door. The cage driver
sustained scratches on his arm
and they managed to grab some of the roof bolts which they took with
them when they surfaced. Henderson
asked workers blocking the exit to
step away from the cage doors so that the gate could be opened. Some
workers were willing to
do so; others were not. Ultimately, after
some tussling, the door was opened far enough for Truter and van
Aswegen to enter the
cage. Another worker tried to force himself in
but other workers pulled him back by his jacket. He freed himself
from the jacket
and got into the cage. Later under cross-examination
he was confronted with what he had said at the disciplinary inquiry
namely
that the worker’s jacket got caught inside the cage door
when the door was forced open by workers. Henderson conceded that

there were a lot of things going on at the time he could not see
precisely how the jacket got stuck but “the jacket went
out
without him”. There appears to be a discrepancy between the
typed minutes of the inquiry and the handwritten notes of
the
evidence. This was raised in re-examination. What was recorded in the
handwritten minutes was that everyone was pulling the
individual in
question and his jacket had to be loosened to get him into the cage.
[239]
After Truter and van Aswegen had left for the fire patrol, Henderson
said he received a call from the personnel
in the boiler shop who
told him that there was an injured person, who had apparently
sustained injuries when he had asked the workers
holding the sit-in
if the personnel in the boiler shop could surface. Henderson
expressed his concern that an attempt to retrieve
the injured person
would be resisted by the workers sitting-in, but he was advised that
the other workers had agreed that the injured
person could be
evacuated. Henderson then went down with the cage driver to fetch the
injured worker. He was able to do so without
any difficulty.
Henderson could not remember if this was before or after he had gone
down to assist the two artisans to surface.
He was tested on this
evidence because in a disciplinary inquiry he had said that one of
the personnel who had been hiding in the
boiler shop had sustained a
bad leg injury when running away from workers at the main shaft exit.
It was suggested in that evidence
that the injury was caused by being
hit by those workers, whereas in his later written statement he said
that he was made to believe
that the injury was sustained after
leaving the boiler shop and asking if the boiler shop personnel could
surface. It was put to
him that these were two completely different
versions. However, while it may be unclear whether the injury was
sustained as a result
of a direct assault or as a result of being
chased, both versions are consistent with the unsuccessful attempt of
the boiler shop
staff to exit using the incline shaft where they were
forced to turn back.
[240]
Later Henderson was phoned a number of times by Daniel Rakhota
(Rakhota), a roof bolt operator, who complained
of being unwell and
asked to be fetched. Henderson told him that management had issued an
instruction that no one should go underground.
Despite this,
Henderson told Rakhota that he would fetch him based on “how he
sounded”. Due to the earlier incident,
Henderson said he needed
a clear undertaking that the strikers would allow him to surface.
Once he got confirmation from Rakhota
that such an agreement had been
reached, Henderson descended with one Hinchcliff, the cage artisan,
to fetch Rakhota. As the cage
door opened at shaft bottom, the
striking workers were not in front of the cage gate and Henderson got
the impression that Rakhota
would be allowed to leave. However, when
the cage gate was opened, a large number of workers ran into the
cage. Other workers outside
the cage then told them to leave the cage
but they refused. The workers outside the cage stood in front of the
cage gate preventing
it from closing. In his original statement he
said that additional workers also came into the cage, and they also
refused to leave,
but when he testified, he said that was an error
and should be deleted. Matwa said that he was present at the cage but
focussing
on the sick worker. He did not notice additional workers
getting into the cage or hear other workers telling them to leave the
cage. Nevertheless, he was confident that nobody had been prevented
from surfacing. Makoko was aware of the sick individual and
heard
that Henderson fetched him, but he was not in the area at the time
because he was sleeping in one of the LDV’s
[241]
According to Henderson, one of the workers who had entered the cage
ran out of the cage shouting at those
who were keeping the gate open.
He was assaulted but broke free of his attackers. His face was
bleeding. Henderson appealed to
the workers who had entered the cage
to leave so that the sick and injured workers could be taken to the
surface, but they would
not leave the cage. Henderson then phoned the
shaft engineer, who contacted the OEM of the cage and instructed him
to override
the safety mechanisms on the cage gate to allow the cage
to surface, which proved successful. The names of the workers that
were
brought up were taken. Matwa said that he did not see any
scuffle.
[242]
Degenaar also testified in relation to this event, namely that an
agreement had been reached between the
mine manager and the
underground leaders who were communicating with him that workers who
had been assaulted would be allowed to
surface. Around midday
Henderson was allowed to fetch 26 workers. However, he was told that
the safety mechanism of the cage was
tampered with and had to be
overridden.
[243]
Degenaar claimed the sit-in participants only surfaced around 16:00.
Matwa said that he had received the
call to surface from the
full-time health and safety representative at the Middleburg main
shaft. In turn, he had contacted the
full-time shop steward Lemaoana
to verify the information.
Middelbult Mine –
Main shaft
[244]
Godfrey Tshivashe (Tshivashe) was the underground manager at
Middelbult Colliery main shaft (the services
shaft at Middelbult) at
the time of the strike.
[245]
The cage at Middelbult main shaft is capable of carrying
approximately 200 people. Accordingly, all the
services teams for a
particular shift would descend simultaneously at the start of a shift
and would all surface together at the
end of a shift. The space at
the bottom of the shaft was large enough to accommodate several
hundred workers at once so that all
teams could congregate at the
bottom of the shaft before dispersing to their various working areas.
The underground services team
on each shift is much smaller than the
production teams, typically comprising: a miner or team leader; an
artisan and artisan assistants;
a few machine operators and a couple
of general workers.
[246]
The night-shift commenced at 22:00 on Wednesday, 21 January 2009 at
Middelbult main shaft and ran normally.
The Middelbult mine manager,
van der Westhuizen instructed Tshivashe to communicate the memorandum
issued by the HR department
following the protests on 19 January to
the night shift.
[247]
On the morning of 22 January 2009, day shift workers also went
underground at 7:00, and the night-shift
started ascending at the end
of the shift at 8:00 on 22 January 2009, as was normal practice. Soon
after Tshivashe arrived at work
08:00 on 22 January 2009, either by
Johan van der Bank (van der Bank), a mine overseer in services, or
Dewald Labuschagne, a shift
boss reporting to Johan van der Bank,
advised him that certain night-shift workers had not surfaced.
[248]
Tshivashe then checked the lamp room register to determine how many
night-shift workers were still underground
after their shift ended
and found 12 lamps were missing. He tried to determine if the workers
to whom the lamps belonged had remained
underground owing to normal
service activities like breakdowns or planned overtime. The relevant
supervisors told him that the
workers were not authorised to stay
underground after the end of their shift. Ordinarily, incomplete work
would be left incomplete
at the end of a shift to be finished on
another shift unless a particular task had to be completed because it
was emergency work
and the incoming shift could not deal with it.
Even so, in such a case the supervisor would still have to authorise
the overtime
work.
[249]
The three supervisors of the missing night-shift workers were sent
underground once it was realised that
the teams had not surfaced but
they reported that they could not find any of them at the shaft
bottom, so it was surmised that
they were participating in the
sit-in. The supervisors descended again to deliver copies of the
following ultimatum to the workers
who had not surfaced: it read:
“
You
have embarked on UNPROTECTED industrial action by staging a sit-in
and refusing to return from your completed shift from underground.

By taking this action you are putting your own safety as well as the
safety of co-workers at risk.  You are hereby given an
ultimatum
to come to the surface from underground by ... If you do not come out
from underground, disciplinary action will be as
follows:  you
will be suspended pending disciplinary action that may lead to
dismissal in line with the Sasol Disciplinary
Code.”
[250]
The copies of the ultimatum were in English and isiZulu. The
supervisors returned and reported they could
not find the individuals
in question either at the bottom of the shaft, or at their respective
working areas. They also told him
that they had left copies of the
ultimatum at the shaft bottom for the workers in case they returned
to the shaft area. The applicants
pleaded that, after working the
night shift, the teams assembled at the shaft waiting area, but
nobody came to see them until 16:00.
They also pleaded that the
workers did not surface because they were participating in the
sit-in. Tshivashe could not directly
refute their claim that no one
came to address them, because he never went down the shaft that day,
but he expressed confidence
in what the supervisors had told him.
Tshivashe did concede that since a decision was taken not to go
underground in the afternoon
to address the day shift workers who had
not surfaced, he could not say whether they might have been convinced
to surface. He also
agreed no attempt was made to engage with the
workers participating in the sit-in to understand what the concerns
might be.
[251]
It was put to Tshivashe that he had been obliged to communicate the
ultimatum to the day shift workers as
well, but he insisted that the
only instruction he received had been to communicate with the
night-shift workers and he had never
been instructed to issue the
ultimatum to the day shift workers. For the reasons mentioned,
management did not send anyone down
the shaft for that purpose from
the afternoon of 22 January 2009.
[252]
The central HR office communicated to management that the afternoon
shift workers should not be allowed
underground, apparently based on
information they would join the sit-in which would compromise health
and safety. Consequently,
the shaft manager instructed the afternoon
shift workers, who arrived at about 15:00 for the commencement of
their shift at 16:00,
to go home. As in some of the other mines, some
obeyed the instruction, but others refused to leave and gathered near
the shaft
entrance.
[253]
When the morning-shift ended a number of workers surfaced, but others
did not. Of those who did surface,
some joined the afternoon shift
workers gathered on the surface in the shaft area and defied
instructions to go home. Eventually,
workers who refused to leave the
premises after an hour were issued with an ultimatum by the shaft
manager, Mr B Lourens (Lourens).
The ultimatum was handed out and
read to them in English and Zulu but they ignored it.
[254]
A decision was taken not to send the fire patrol crews down the
following morning to conduct their inspection because management
was
unsure how safe they would be with the other workers sitting in
underground. When Sasol obtained the interdict in relation
to the
strike, Tshivashe was advised that an UPUSA ‘representative’
at Main shaft was shown a copy of the interdict,
which he then
conveyed to the workers participating in the sit-in. Thereafter,
workers who had participated in the sit-in started
surfacing around
15:30. In order to comply with mining regulations a practice was
implemented throughout the mine to ensure that
there was a shaft
clearance process at the end of every shift to ensure that there were
no people who were left underground without
the requisite
authorisation. This process is carried out by the lamp room personnel
and verified by the shift boss.
[255]
Tshivashe testified that, during the course of the afternoon of 22
January, management received reports
of intimidation and threatening
behaviour by the striking workers such as tampering with the cage
conveying management personnel
at West shaft and threatening them
with roof bolts. Management was also told that a chief foreman at
west shaft had narrowly escaped
physical harm by workers
participating in the sit-in. This led management at Main shaft to
decide that it was unsafe to go underground
again to communicate with
the workers underground from the afternoon of 22 January 2009
onwards.
Brandspruit Mine –
Main shaft
[256]
Barend Osborne (Osborne) (Electrical/Mechanical foreman at
Brandspruit main shaft – Production Services)
and Salvador
Manihque (Manihque), a Toro Operator at Brandspruit 2, testified on
events relating to this shaft. It was common cause
that this was a
maintenance shaft at the time.
[257]
Osborne only testified about the issuing of an ultimatum on 23
January to the workers who had gathered underground
at the transport
control room. Between 12:00 and 13:00, he and Bernard Hlatshwayo
(Hlatshwayo) went underground. Workers were gathered
in the transport
control room and closed the door when they approached. However, after
speaking to them, they allowed them to enter
the control room. They
read the ultimatum to them and it was also translated. The workers
listened in silence and did not attempt
to disrupt the process, but
refused to accept written copies of the ultimatum which were then
placed on tables in the control room.
[258]
Osborne also mentioned that workers could have left via the incline
shaft which was only about 400 m away if they had wanted
to surface,
but were unable to do so using the cage. He made further trips down
the shaft with colleagues, every hour on the hour.
They would exit
the cage so that they were visible to the workers in the hope workers
would surface with them but none did. It
was only the last occasion
that workers finally left the mine, which was some three to three and
a half hour after the ultimatum
expired.
[259]
He did not dispute a statement on 22 January 2009 that no
communications were made by management to workers
at Main shaft, nor
could he dispute a claim that the water supply to the taps had been
cut and workers had to collect water from
the workshop. Although he
had stated that the ultimatum was delivered between 12:00 and 13:00,
he agreed with a statement that
they had descended between 10:00 and
11:00. He also did not specifically dispute a claim made in the same
statement that workers
were told to surface by 16:00, though this
would have been at odds with the ultimatum issued by the ER
department that morning.
[260]
Osborne could not comment on the following portions of a statement by
Manhique.
“
We
remained underground and were discussing amongst ourselves our
disappointment at the fact that we were not addressed as to why
it is
that we were underground, but instead we were told that steps would
be taken against us. To us this was an indication that
the respondent
was fighting back.  We therefore remained underground.”
“
At
approximately 14:00 Mavula informed me that a call had come through
from Brand-2 indicating that they had received a call from

Mabuyakhulu that employees should gather in one place and wait for
further communication. We then received feedback that we should

surface before 16:00. Whilst busy discussing this, the cage descended
and we immediately surfaced.”
[261]
Manhique testified that he simply arrived at the shaft bottom he
found other workers waiting there and when
he was told the reason
they were waiting was because they were waiting for management to
come and address them, he decided to join
them.
Brandspruit Mine –
Number 2 shaft
[262]
Witnesses to events at this shaft were: Pieter Du Preez [Du Preez],
underground manager at Brandspruit No.
2 shaft; Frans Schuller
(Schuller), an artisan; Maliyephi Gqadu (Gqadu), a general worker;
Jerry Mehlomakhulu (Mehlomakhulu), a
cage driver on the
morning-shift, and Jeremiah Bhembe, a shuttle car operator and an
ordinary shop steward. Mehlomakhulu was also
dismissed for
intimidation and threatening violence and for participating in the
strike.
[263]
In his written statement, which he
confirmed in most respects, Du Preez explained that at Brandspruit
mine, the Main shaft was a
services shaft, near to which was the
incline shaft, and shafts two and three were the production shafts.
The main shaft was approximately
10 kilometres from shaft number two
underground. At shaft number two, the cage was large enough to hold
all the production teams
for a shift because it could carry 150
workers. Similarly, the area at the bottom of the shaft was large
enough for all production
teams to congregate around the cage.
[264]
Du Preez testified that, apart from
supervisors, some artisans and a few miners, the night-shift workers
on 21 January 2009 did
not surface at the end of their shift at 8:00
on 22 January 2009.
[265]
Du Preez said that, on that morning, he
initially went down as part of a delegation to address the
night-shift workers to ascertain
why they had not surfaced. They told
the night-shift that they should come up to the surface, to which
they responded that they
were not happy with the negotiations with
the company and that was why they were staging a sit-in. In response,
the management
delegation advised them that they should nevertheless
surface, even if they had a problem, otherwise disciplinary action
would
ensue. He agreed that senior management had issued the
instruction that they should go and attempt to ascertain what the
workers’
problems were. However, as Mine Management they could
not engage further with the workers because they did not want to talk
to
mine management. When clarifying this, he said the workers had
actually asked to speak to Mkhize and Strauss.
[266]
In any event, the issues that they raised
were ones of a centralised nature that had to be dealt with by senior
management and could
not be dealt with at the mine management level.
All he could do was to convey this to his mine manager. He admitted
that he was
aware of the protest action at the mine’s offices
and that there was unhappiness about ‘negotiation issues’,
but could not remember being aware that shop stewards had also been
suspended at that time.
[267]
Du Preez said that he was instructed to
read out and hand copies of the ultimatum distributed by the ER
department at around 10:00
to the striking workers. He went
underground, together with a few miners and artisans. They left the
cage and read the ultimatum
in English to the workers gathered there.
The ultimatum was translated into isiZulu. They then left copies at
the bottom of the
shaft. No one else surfaced with them. He confirmed
what appeared in a “strike diary” for Brandspruit, namely
that
workers continued singing and dancing and paid no attention to
management’s attempt to address them. Later in his evidence
he
said that when the first ultimatum was served there was no hostility
or aggression directed at management.
[268]
Mehlomakhulu was working on the
morning-shift on 22 January 2009. He agreed that at about 10:00 he
took management down after descending
and surfacing twice with other
workers. He testified that when he took management down, he only
opened the cage door, not the shaft
door. The managers merely
observed the workers singing and then returned to the surface. He
denied Du Preez read any ultimatum
to the workers, or that they had
any ultimatums with them. Gqadu, who had worked on the night shift,
agreed the cage descended
and the inner door opened but nobody left
the cage.  At that stage, workers were singing and dancing ‘with
sticks’.
In his testimony, he said the workers were relieved
because they thought they had come to explain the wage gap to them,
but they
just ‘peeped’ at them and left without speaking
to them.
[269]
Mehlomakhulu said that when he surfaced he
was told by Phulane Mahaye, the shaft manager who was on duty after
Du Preez left that
day, to give him the keys to the cage, which he
did.  He claims this was because he was allegedly seen taking
food to the
workers underground, something he denies doing. Gqadu
also amended his statement to reflect that he was told by sometime in
the
afternoon before the morning-shift joined the sit-in that his
keys had been taken from him. Gqadu also claimed that Mehlomakhulu

never came down again after ascending with the managers in the
morning.
[270]
Du Preez testified that some workers
contacted shaft management and said that they were held underground
against their will. When
the cage was sent down for them, the workers
were blocked from entering it and could not surface. He claimed that
more than once
the cage descended on the request of workers
underground only to return empty. The only personnel permitted to
leave were salaried
personnel such as shift bosses, foremen and more
senior workers. Du Preez indicated that he ultimately advised those
workers that
wished to exit to walk to the incline shaft (at
Brandspruit main shaft) and exit there.  Some of the workers did
so and were
able to exit the mine, notably two female workers who
hiked to the main shaft. Du Preez said this entailed walking
approximately
13 kilometres and then ascending the 800 metre incline
shaft which had a gradient of 17 degrees. He conceded he did not
personally
witness any violence. Gqadu denied that anyone was
prevented from leaving but could not dispute that the artisans left
via the
incline shaft nor provide an explanation why they might have
felt it necessary to resort to such an arduous way of getting to the

surface.
[271]
Schuller was unable to comment on
Mehlomakhulu’s version of what transpired with Mahaye, but
testified that between 15:00
and 16:00 on 22 January 2009,
Mehlomakhulu had refused to open the cage when it descended at the
end of their shift, thereby preventing
himself and two other
individuals from boarding the cage underground. From communications
between workers outside the cage with
Mehlomakhulu, he gathered that
they instructed him not to open the cage for them to leave. He opened
the inner door of the cage
only. Other workers manhandled Schuller
and pushed him away from the cage. After the cage had ascended, he
phoned Mehlomakhulu
again but when Mehlomakhulu brought the cage down
he would not take them up because he then joined the other workers
underground.
He could not be sure whether Mehlomakhulu brought the
cage down because he phoned or because he was bringing food and
drinks to
the workers underground. It was when he opened the cage
doors to handover the food that they were able to enter the cage.
Later,
Schuller clarified that he was not sure whom he spoke to on
the surface to summon the cage again. After waiting 10 minutes inside

the cage, they left and eventually surfaced by driving an LDV to the
incline shaft.
Du Preez understood that
Mehlomakhulu had been dismissed not simply because he had taken food
down to workers participating in the
sit-in but because he had
indicated his support for the sit-in and at one stage had refused to
take workers who wanted to exit
the mine to the surface.
[272]
Gqadu only recalled the cage coming down
again in the afternoon and that again management had simply observed
the situation and
surfaced again without opening the cage. According
to him nobody came to address them during the afternoon of 22 January
2009 either.
He denied there was any violence and anyone who wanted
to surface could do so. In particular, members of other unions who
were
not participating in the sit-in did leave.
[273]
Bhembe could not comment on what transpired
at the shaft bottom when management was there because he said he only
arrived there
when management was in the process of leaving. He
testified, somewhat implausibly, that even though he would normally
have surfaced
at the end of his shift, he had remained underground to
monitor the situation, ensure safety and, or alternatively, to
protect
company property, despite not being instructed to do so and
despite it not being part of his duties as an Emco driver. He sought

to explain that he had stayed underground to ensure safety during the
industrial action, in his capacity as a shop steward and
therefore he
was not actually participating in the sit-in. Whilst acknowledging he
had previously been warned for participating
in unprotected
industrial action in December 2006, he was reluctant to concede that
he was aware of the relevance of that warning
to the industrial
action in January 2009. He had said in his statement that he was not
in the vicinity of the cage when it descended
at around 11:00 on 22
January 2009 because he was conducting safety patrols.
[274]
Du Preez testified that when the
second ultimatum was received around lunchtime on 22 January 2009
from the ER department, he told
Frans Van Dyk (Van Dyk) to go
underground to read the ultimatum to the workers underground and
leave copies there.  He remembered
Van Dyk going underground,
but could not remember who accompanied him to translate the
ultimatum. When he returned, none of the
workers underground surfaced
with him, nor did any surface by the time the ultimatum expired. That
ultimatum warned that if workers
did not surface, disciplinary action
will be taken against them, starting with their suspension pending
disciplinary action which
could lead to their dismissal in terms of
the company’s code. He later confirmed that the morning-shift
workers were only
served with an ultimatum on the second day at about
10:00.
[275]
He agreed that workers told him that they
were unhappy about the negotiations and the wage gap. Nonetheless he
could not address
them on these issues as they did not want to engage
with him and he was not in a position to negotiate over those issues
anyway.
Nonetheless, he relayed what the workers had said to the mine
manager, Nzama Baloyi.
[276]
Gqadu agreed that management personnel came
to the shaft bottom a number of times on both days of the sit-in.
However, he said that
he could not hear du Preez or any managers
because he was wearing ear protection and there was a lot of noise.
[277]
As at other mines, it was decided to cancel
the afternoon shift. Similarly, workers arriving at the afternoon
shift were advised
that their shift was cancelled because the
situation underground rendered their working conditions unsafe. They
were also advised
that the shift was cancelled without any loss of
benefits and they should return home. As happened elsewhere, some of
them refused
to leave the shaft area until the workers underground
surfaced.
[278]
The morning-shift remained underground and,
except for supervisors, did not surface at 17:00.  Du Preez said
that some artisans
engaged on the morning-shift left the mine by
driving to the incline shaft at the main shaft, when they were
prevented from leaving
at number 2 shaft. Although he claimed there
were reports of workers at being threatened and pushed around, he
could not supply
any details of these. Gqadu denied anyone was
threatened but suggested that the artisans decided to go to the
incline shaft because
they were threatened by what was happening: not
that they were prevented from leaving. He could not say what might
have made them
feel threatened though.
[279]
At around 10:00 on 23 January 2009, Du Preez went
down in the cage to read a further ultimatum to the workers, telling
them to surface
by 11:30. He claimed this time that “the
employees were more agitated were waving roof bolts and sticks in a
threatening
manner”. He said he managed to read most of the
ultimatum (together with the translation thereof by a shift boss)
before
the singing and the noise became so loud that the employees
could no longer hear him. He then left copies of the ultimatum (which

was in English and in isiZulu) and ascended to the surface. As the
cage was on its way up “there was a knocking noise against
as
it was being hit with roof bolts and thrown with stones”.
Gqadu remembered the cage descending that morning at about 09:00.
However, according to him, management merely observed workers
singing
and dancing with sticks but did not leave the cage or address
workers. He denied anyone threw any stones at the cage when
it
ascended.
[280]
On 23 January 2009 nobody surfaced by 11:30 as required by the
ultimatum. Instead they surfaced at approximately16:00.
Gqadu
testified that it was Bhembe who received the call from Mabuyakhulu
who informed him that workers must exit the shaft by
15:00.
[281]
As at other mines, it was claimed that underground to surface phone
lines were disconnected. Du Preez agreed
that shutting off water had
been considered, but it was decided after re-evaluating the risk that
the water supply would be maintained.
His claim that workers had
phoned to say they were being prevented from leaving and that efforts
were made to bring them to the
surface which would not have been
possible without such communication. Gqadu agreed that phones were
working on 22 January 2009
until he tried to contact Mehlomakhulu’s
replacement that afternoon. The phones were working again on 23
January 2009.
Brandspruit Mine –
Number 3E shaft
[282]
George Hattingh (Hattingh), shaft manager at 3E shaft at the time and
Jeremiah Rapulane (Rapulane),
Brandspruit No. 3E
shaft underground manager, testified as to the events at this mine.
[283]
This shaft was linked underground to the main shaft and coal
extracted at the two production shafts (2 and
3E) was carried on
conveyer belts to an incline shaft near the main shaft. The
night-shift at the time was a maintenance shift.
Production at this
shaft took place between 4 and 8 km from the shaft bottom, with
production teams traveling in LDVs to the production
areas. The cage
at this shaft and the area around the cage at shaft bottom were big
enough to accommodate all production teams
on a particular shift.
[284]
At about 08:30, Hattingh was advised by mine overseers that
night-shift workers were not surfacing. The
mine manager, Nzama
Baloyi (Baloyi) told him that workers were sitting-in as part of a
collective action with other dissatisfied
miners at other shafts. He
descended with Baloyi, Jeff Japhta, the underground manager, Rapulane
and other supervisory staff at
about 11:00. Baloyi issued an oral
ultimatum calling on the 18 or so workers gathered at the shaft
bottom to surface within one
hour because they were engaged in
unlawful industrial action. He could not recall if Baloyi had read
from a written document but
it was also translated by Japhta.
Nevertheless, he recalled that it was in conformity with what they
had been advised to communicate
by the HR Department, namely:
“
You have embarked
on unprotected industrial action by staging a sit-in and refusing to
return from your completed shift from underground.
By taking
this action, you are putting your own safety as well as the safety of
co-workers at risk. You are hereby given an ultimatum
to come to the
surface from underground. If you do not come out from underground,
disciplinary action will be taken as follows:
you will be suspended
pending disciplinary action that may lead to dismissal in line with
the Sasol Disciplinary code.”
[285]
The workers listened but did not respond to the ultimatum and asked
no questions. By the time the ultimatum
expired, none of the workers
had surfaced. He denied a suggestion that there was too much noise
and therefore the announcement
could not be heard. At the time,
Hattingh said Baloyi’s voice was loud enough to be heard. He
agreed with a statement by
Jabu Mashile (Mashile) that on this
occasion Baloyi did not attempt to engage with workers about the
cause of their dissatisfaction.
However, he denied Mashile’s
claim that ultimatums were thrown on the ground because they had not
taken paper ultimatums
with them to distribute. That only occurred on
the second occasion.
An
explanation for the worker’s silence was provided at one of the
subsequent disciplinary inquiries by one of the workers
who
testified:
“
While waiting
underground Mr Hattingh visited the workers, but we did not want to
speak to Mr Hattingh as he did not promise anything
to the workers.
While underground tried to speak to executive but could not go
through to them, as they were suspended.
Mr Strauss did not
take our memorandum in which they complained wage gap”
[286]
Hattingh did not dispute this, but simply said that this was never
conveyed to him when he went underground.
His sole intention was to
get people to surface as required by law. He further understood a
statement made during one of the disciplinary
inquiries by one of the
workers participating in the sit-in to the effect that” (t)here
is a reason why we did not listen
to management, we did not want
them”, as simply confirming his own impression that the workers
did not want to engage with
them.
[287]
Later, at
13:15 Hattingh, De Klerk and Vusi Zulu (Zulu) went down the mine to
issue the second ultimatum, which they had received
from the central
office. It was communicated in English by Hattingh over a loud-hailer
and Rapulane translated it. The ultimatum
advised them that they
should surface by 15:00 or face disciplinary action which could
ultimately result in their dismissal.
[7]
As before, the workers were unresponsive. They also refused to take
any of the copies of either the English or the translated version
of
the ultimatum, which were then left on the ground at the shaft bottom
where they were gathered. The ultimatum was also ignored.
[288]
Hattingh also remembers telling workers arriving for the afternoon
shift at about 15:22 to return home as
the underground problem had
not been resolved, but could not recall whether that was an
instruction from Head Office. The decision
was made, even though at
that stage management did not know if the morning-shift workers would
join the sit-in at the end of their
shift. However, by 16:30 he had
been told by subordinates that the morning-shift workers were not
surfacing. Nevertheless, it seemed
that workers were free to leave if
they wished and some workers did surface. At 17:30 he obtained a list
of persons who had not
handed in their lamps at the lamp room, which
revealed that 18 night-shift workers and 39 day-shift workers had not
surfaced.
[289]
He also phoned and spoke to one P Nkosi who was underground and
advised him that if there was an emergency
or if someone fell ill he
could be phoned in his office and he would arrange an ambulance. No
calls were received by the time he
was relieved the following morning
by Rapulane at 08:15. In this regard he also disputed Mashile’s
claim that after the day
shift ended until the following morning the
cage no longer moved and that workers underground were unable to
receive calls but
were able to make calls to workers on the surface
to request food. Hattingh insisted that the cage was available for
anybody that
called for the cage, but could not comment on the claim
that workers underground could not receive calls.
[290]
Hattingh agreed that the morning-shift was not served with any
ultimatum on 22 January 2009. De Klerk confirmed
that no ultimatum
was served on workers underground between 13:15 on the first day of
the action and 10:00 on the second day.
[291]
Hattingh was advised that another delegation consisting of De Klerk,
Rapulane, Zulu and Japhta had gone
underground at 10:00 on 23 January
2009 to issue a further ultimatum, but on arrival they were met with
a hostile reception: workers
were brandishing roof bolts and sticks
while singing. Accordingly, no oral communication could be made and
the written ultimatums
were left at the shaft bottom. Rapulane
confirmed Hattingh’s testimony and also gave evidence on this
episode which he was
personally involved in. Given the animated state
of the workers, who were brandishing roof bolts and drill steel bits
whist singing,
to be on the safe side they opened the outer roller
door but not the cage door when the cage arrived at the shaft bottom.
Rapulane
said he was not sure if they would assault him but thought
it safer if the outer door remained closed. He began reading from the

printed ultimatum, of which about 50 copies had been printed.
However, as soon as he finished reading the ultimatum, workers
started
hitting the cage with roof bolts and drill steel and said
they did not want to speak to him, but only to their union leaders.
As
he saw that the workers were becoming aggressive, he closed the
roller doors and ascended. He conveyed the workers’ demand
to
Hattingh.
[292]
By the expiry of the ultimatum at 11:30, none of the workers
underground had surfaced. However, after UPUSA
shop stewards were
informed at the mine’s central offices that the court had
declared the industrial action unprotected strike
action, all workers
surfaced by 15:30 and left the mine in buses. They were also supplied
with food.
[293]
Workers reporting for that shift on Sunday evening on 25 January 2009
were advised that the mine had decided
not to allow anyone to go
underground and they were advised to return the following morning. On
the following morning assembled
workers were advised that those who
participated in the sit-in were suspended. Workers signed for
suspension letters and given
a chance to make statements to security
staff if they had been intimidated or victimized, but no one took up
this offer.
[294]
Hattingh denied that any telephones were cut and reiterated what
other witnesses said, namely that if one
phone was not operational
there were other phones located every kilometre underground. De Klerk
pointed out that if the lines were
not working, the workers could not
have received news of the strike ending. The workers had called for
the cage at some time between
15:00 and 16:00 on 23 January 2009 to
leave the mine.
[295]
Hattingh did not personally witness any violence but was aware of the
aggression shown towards De Klerk.
They also had received unconfirmed
reports of alleged intimidation of, or threats made, to workers
underground.
Twistdraai Mine –
Central shaft
[296]
Hendrik Potgieter, who was at the time the underground manager at
Twistdraai Central, made two statements.
The second statement was
made after reading the statements of five of the applicants in
relation to events at that shaft. Enoch
Zwane, a conveyor belt
supervisor working on the morning-shift also testified. He was
dismissed for participating in the sit-in
after being found not
guilty of intimidation and harassment in his disciplinary enquiry. He
claimed Potgieter found him guilty
on this count as he claimed he had
been one of the ringleaders of the sit-in.
[297]
Potgieter explained that at the time only two of the three shafts at
the mine were production shafts namely
the East and Central shafts.
Support services were rendered to the whole mine using the Central
shaft, because the shafts were
linked underground by a ‘panel’
of roadways. Like other mines there was also an incline shaft and, in
addition, a steel
stairwell which could be used to enter and leave
the mine. The morning and afternoon shifts were production shifts and
the night-shift
was the maintenance shift. The four production areas
were some 12 and 19 km from the central shaft and workers from each
team travelled
to their production area in two LDVs. The cage at the
central shaft was large enough to accommodate 200 occupants and
allowed the
entire production teams for a shift to descend or ascend
at the same time. Similarly, the area at the bottom of the shaft was
enough
to accommodate all the production teams before they dispersed
to their production areas.
[298]
Unlike other mines, the night-shift of 21 January 2009 did not stay
underground when their shift ended the
following morning. When news
of the sit-in at other mines became known, management took a decision
to take pre-emptive measures
to ensure that the workers on the day
shift did leave after ending their shifts. Potgieter did recall being
given guidelines on
how to deal with the situation, but they were not
the guidelines contained in the memorandum from the ER department of
22 January
2009. The concerns at that stage were about the safety of
workers and protection of mine infrastructure.
[299]
According to Zwane he only learned of the sit-in at the start of his
morning-shift on 22 January 2009, when
it was ‘mentioned’
by the shaft Manager, Moeketsi Sekukwane (Sekukwane). Zwane first
disputed that Moeketsi warned
them not to participate in a sit-in and
then said he never heard him trying to engage them on the issue like
that. He had merely
told them there were rumours it might happen. He
maintained this version even though the supplementary statement of
facts by the
applicants actually stated that a manager had issued
such a warning at Twistdraai Central. He and the other workers in the
service
section had no intention of participating in the sit-in but
were compelled to remain underground because of the conduct of their

shift boss, Danie Venter (Venter).
[300]
Zwane said that his shift performed their duties as usual on 22
January 2009. At approximately 14:00, they
were instructed by Venter
to stop working and gather at the Cage. Venter was with Potgieter,
the underground manager, and a certain
‘Etienne’. Zwane
affirmed that the shift thought they would be addressed by management
to explain why it is that we
had not been paid in January 2009.
Venter instructed him to go to the cage and that he would park the
LDV, which they had travelled
in. Potgieter denied they were told to
gather at the cage: the instruction was to surface.
[301]
Zwane explained further that, on arriving at the cage, they sat on
benches, because the cage had gone to
the surface. Workers from other
sections and stores began arriving at the shaft bottom. Once they
were all there, Potgieter advised
them that the cage was returning
with the Sekukwane. When Sekukwane arrived, he said that because
workers wanted to know why they
had not been paid their monies in
January 2009, he would go to the surface and come back with an HR
representative who will provide
answers. Potgieter then instructed
Etienne and Venter to take the rescue pack numbers of all workers who
were underground.
[302]
Potgieter agreed that Sekukwane had some interaction with the workers
underground, but did not fully understand
what had been communicated
between them. After that engagement ‘the ultimatum was given’
and the rescue pack numbers
were taken down. It should be mentioned
that it was never specifically put to Potgieter that Sekukwane had
undertaken to fetch
an HR representative to speak to the workers
underground. Zwane stated that all the managerial personnel together
with the contract
workers ascended with the cage and did not return,
despite what Sekukwane had said. Potgieter disputed this saying that
Sekukwane
had descended again, but on the following day. Potgieter
was not challenged on his account of having gone underground a number
of times that day.
[303]
Potgieter agreed he had sent supervisors to each production section
at around 14:00 to speak to the teams
before they left their sections
at 16:00. He stated that he went personally with two other
supervisors at 15:00 to close the workshop
areas. When the workers
arrived at the shaft bottom from the production sections he said he
was present and instructed them to
surface. This measure was an
attempt to pre-empt a sit-in by the morning-shift.
[304]
In his original statement, Potgieter said that after the
morning-shift workers started to return to the shaft bottom in the

LDVs around 16:30. Some of them surfaced early before their shift
ended as requested and others joined workers seated in the seating

area. He asked those who did not surface why they were refusing to do
so but they refused to answer. This prompted him to phone
the shaft
manager to advise him not to allow the afternoon shift to go
underground. Ordinarily, they would descend an hour before
the
morning-shift surfaced at 17:00. The purpose of preventing the
afternoon shift from going underground was to minimize the number
of
workers underground. Accordingly, these measures were taken before
any sit-in started at Twistdraai. Potgieter agreed that it
was his
decision which prevented afternoon shift workers from going
underground. However, he said that the decision to actually
cancel
the afternoon shift and instruct them to go home, as opposed to
merely preventing them from going underground, was only
taken just
before 18:00, after the second ultimatum had been issued to the
workers underground.
[305]
Potgieter denied ever receiving an instruction that he should try and
establish their concerns. He did agree that the ultimatum
was a
non-negotiable instruction. At that stage, he was unaware of the
directive to establish the concerns of workers. Potgieter

acknowledged that an employer should engage continuously with workers
participating in industrial action. But in his view, the
ultimatum
was not unreasonable because there was no reason for the workers not
to surface once the shift was over. It was true
that the assembled
workers cooperated with supervisors in providing their lamp room
numbers, but they were not prepared to discuss
anything else.
It was suggested to him that issuing the ultimatum and stating that
it was non-negotiable was very provocative
and unreasonable, but he
insisted that he could not get any reasons from anyone. He readily
agreed that he could not have engaged
with the workers about their
concerns about the wage gap as he did not know enough about the
process.
[306]
When issuing the instruction to workers to surface, Potgieter said no
distinction was made between members of different unions.
They were
all expected to comply. The same applied to the ultimatum. While he
was attempting to persuade workers to surface supervisors
were
verifying the lamp numbers of those underground. At that stage the
workers were co-operative. When they surfaced they realized
that two
persons were unaccounted for. For reasons which are not necessary to
relate here neither of them were disciplined for
participation in the
sit-in as the reasons for remaining underground were unrelated to the
industrial action.
[307]
Under cross-examination, Potgieter stated that he had phoned the
general manager about the situation after
workers would not give him
any reason why they were staying underground, though he agreed that
he had not mentioned asking them
this in his written statement. It
was put to him under cross-examination that he had issued the
instruction to morning-shift workers
to surface before the sit-in had
commenced. Strictly speaking this was true, but based on his
interaction with those morning-shift
workers who had refused to
surface when asked to leave early, it was not unreasonable to
anticipate that one would ensue. A few
more workers complied with
Potgieter’s instruction to surface when the cage returned and
they accompanied him in the cage
to the surface. At that stage
approximately 100 workers remained underground.
[308]
Zwane was adamant they were simply told to leave their workstation at
around 14:00 and proceed to congregate
at the shaft bottom. By 16:00,
the cage had already surfaced and they were still waiting at the
shaft bottom. According to him,
they simply obeyed instructions and
waited patiently in vain for nearly a whole day for the managers to
return as promised with
the HR personnel.
[309]
Later that day, Potgieter said that he had returned again to the
shaft bottom with an instruction to persuade
workers to return to the
surface and to confirm that those who were still underground
corresponded with the lamp room records of
miners who had not handed
in their lamps. He advised the assembled workers that it was illegal
for them to remain underground and
unsafe to stay there beyond the
end of their shift. This warning had no impact and he read out an
ultimatum to them, which he had
written in his notebook as the
general manager dictated to him over the phone. It read:
“
You
have embarked on unprotected industrial action by staging a sit-in
and refusing to return from your completed shift from underground.
By
taking this action, you’re putting your own safety as well as
the safety of co-workers at risk. You are hereby given an
ultimatum
to come to the surface from underground … If you do not come
out from underground, disciplinary action will be
taken as follows:
you will be suspended pending disciplinary action that may lead to
dismissal in line with the Sasol Disciplinary
code.”
[310]
As mentioned, Zwane denied that Potgieter came down again after he
had surfaced on the first occasion with
Sekukwane to summons an HR
personnel to address them. He also denied that Potgieter conveyed any
ultimatum to them as alleged.
[311]
Lastly, Potgieter testified that the keys of the cage were taken from
the cage operator and given to an
artisan with clear instructions
that no one other than supervisors or persons instructed by him
should descend in the cage. Security
guards were also placed at the
entrance to the incline shaft to prevent anyone entering the mine
from that access point. The phone
number at the shaft bottom was
changed to limit incoming communications without restricting the
ability of those underground to
make outgoing calls.
[312]
Potgieter said he went down on a third occasion with Sekukwane to
communicate an ultimatum. On that occasion
workers were shaking the
cage door and singing and dancing. Nevertheless, they left the cage
and Sekukwane read the ultimatum in
English and Zulu. Workers were
becoming more unruly and aggressive. They left copies of the
ultimatum at the shaft bottom before
surfacing.
[313]
Zwane’s version was that at no stage during the period when
they were underground did they receive
any letters or instructions to
surface, nor did he see Sekukwane reading an ultimatum. Likewise, he
disputed that workers were
shouting and unruly, and in any event
insisted that the management group never returned underground after
they surfaced on the
first occasion. However, he did concede he had
said at his disciplinary enquiry that he was present when Sekukwane
communicated
the ultimatums, but all he meant to say was that he was
underground at that time but he never saw them at the time they say
they
issued ultimatums.
[314]
Potgieter was also tested on his statement in one of the disciplinary
inquiries in advancing aggravating
factors to the effect that the
workers could not be trusted anymore “because they had become
totally out of control and deliberately
undermined management
decisions”. This statement was contrasted with his evidence at
the trial that workers had cooperated
in providing the lamp room
numbers and a statement made in one of the inquiries that night-shift
workers who reported at the premises
on 22 January 2009 but refused
to return home spent the night sleeping, sitting and playing cards.
Potgieter interpreted their
failure to follow instructions of
management as evidence of them being disorderly. Other than his
general statement that workers
underground became increasingly
aggressive and were “shouting louder and becoming unruly”,
Potgieter could not articulate
in any detail how their aggression
manifested itself. He could not comment on whether they had
legitimate concerns for taking the
action that they had.
[315]
Not all afternoon shift workers complied with the instruction to
return home. Some remained near the steps
of the lamp room adjacent
to the shaft. The gate between the hospital and the lamp room was
locked to prevent night-shift workers
from assembling and joining the
industrial action, but the next morning, some of the locks had been
broken and additional workers
had gathered with those congregating at
the surface.
[316]
According to Potgieter’s later statement, at about 23:30 on 22
January 2009, ultimatums were read
to the workers gathered on the
surface. They were called over the intercom to gather at the shaft
area near the lamp room and first
ultimatum for the night-shift
workers and second ultimatum for the afternoon shift workers was read
and translated into various
indigenous languages. Only four workers
then asked to leave and transport was arranged for them. The next
morning, day shift workers
started arriving at around 05:30 and were
turned away at the gate but some managed to force their way past to
join those gathered
at the shaft area.
[317]
On 23 January a further ultimatum was read to those gathered on the
surface near the shaft at 07:30, giving
them until 08:30 to leave the
premises. At 09:00 Potgieter instructed supervisors to go through all
the buildings and obtain the
names of those who had not heeded the
instruction to leave. Potgieter agreed that the workers who had
gathered on the surface were
not dismissed for not heeding an
instruction to leave the premises, but were dismissed for
participating in industrial action.
He also agreed that there was no
danger posed by their presence on the surface from a health and
safety perspective. He conceded
as well that the afternoon shift
workers who reported on 20 to January 2009 were prepared to work
their full shift. However, after
their shift would have ended, they
did not go home but remained at the mine in in solidarity with those
underground, which he interpreted
as participation in the sit-in and
that is why they were dismissed. They had been issued with ultimatums
at around 23:30 on 22
January 2009 and again at 07:30 on 23 January
2009. They should have heeded the first instruction because the shift
had been cancelled.
[318]
On the question of whether Sasol could have mitigated its damages
arising from the strike by allowing the
afternoon shift to work,
Potgieter responded that it could only have done that at the risk of
jeopardizing the safety of those
underground because of their
numbers. Trying to run the mine with additional workers engaged in
industrial action underground could
have “got out of hand”.
[319]
On 23 January 2009, Miners and Artisans went down the west shaft to
conduct safety patrols at the production
areas of the central and
east shafts. The patrols were sent down the west shaft because
management was uncertain as to how safe
it would be to send them down
the shafts where workers were striking. Zwane did not directly
dispute this, because he merely repeated
that the cage had not come
down again when this statement was put to him. Potgieter also said a
request to take food down the shaft
to those participating in the
industrial action was refused. Zwane conceded that safety patrols and
fire patrols were important
for Sasol to perform but he had seen no
reason for management to have worried about the safety of persons
conducting those patrols.
[320]
After word was received around 14:00 that workers at some of the
other mines were surfacing, Potgieter and
the shaft manager once
again went underground with some of the supervisors and security
guards. They informed workers that the
strike was over and instructed
them to surface, which they did. Zwane’s version of why they
surfaced was somewhat different.
He claimed that on 23 January 2009,
one of the workers, Jackson Makhanye (Makhanye), said he wanted to
call Venter. He told Makhanye
that he had keys to Venter’s
office, and that perhaps the phone there had not been suspended. The
phone was working and Makhanye
actually phoned one of the LSC
members, Johannes Mofokeng (Mofokeng), who advised them that the cage
would be descending and that
they should surface given that there was
a ‘letter’ instructing all workers to surface. When the
cage came down with
Moeketsi and security guards, they surfaced. He
disputed a version relied on by workers at the disciplinary enquiry
that they only
surfaced after being addressed by a certain ‘Mr
Ntshangase’, claiming that he did not know such a person. He
also avoided
the suggestion that the workers’ version presented
in the enquiry was at odds with his account that they were waiting on
Sekukwane to return with an HR representative.
[321]
Potgieter denied instructing anyone to turn off the water supply
valve, which was located near the hostels.
He only became aware that
it had been turned off when workers surfaced. Anyone could have
closed the valve. Drinking water was
still available underground. The
phones were all working during the strike and workers underground
could phone supervisors safety
representatives and union
representatives whose numbers were on speed dial. Local numbers could
be reached by calling the control
room, which could transfer the
call.
Twistdraai Mine –
East shaft
[322]
Thavir Baijnath, presently the chief foreman at Twistdraai, Tubalisa
shaft, testified for Sasol on the events
at Twistdraai East shaft. At
that time, he was employed as the Acting Section Engineer reporting
to the acting shaft manager, A
Tsotetsi (Tsotetsi). a general worker
on the morning-shift and Eric Dyani, a roof bolt operator working on
the afternoon shift
testified for the applicants.
[323]
Baijnath testified that, just as in the case of `Twistdraai central
shaft, the night-shift of 21 January
2009 worked normally and
surfaced the following morning. In view of the news of the sit-in at
other mines, similar steps at `Twistdraai
east shaft were taken to
those taken at the central shaft, on instruction of Tsotetsi. Thus,
supervisors were sent to production
sections at around 14:00 so that
they could reach the production teams before they left their sections
at 16:00 and ensure that
they surfaced as normal by 17:00. The
afternoon shift was also not permitted to go underground and the cage
keys were taken from
the cage operator and handed over to an artisan
who was instructed not to allow anyone to go underground, except
supervisors or
persons instructed by management.
[324]
Hokwana recalled knocking off early and travelling to the shaft
bottom in an LDV. When she arrived she found
other employees sitting
around or washing their boots.  On enquiring what was happening,
she was told that they were waiting
or management “to come
address them on why it is that the monies that they had been promised
were not paid and to also explain
why it is that the LSC had been
suspended given that it was the LSC that was supposed to update
employees on what was happening
- the concern was, who would now
speak on our behalf”. Hokwana was adamant that they had not
been told to surface by the
supervisors, even though it was pleaded
that shift bosses had told contract employees and non-UPUSA members
to surface.
[325]
Baijath said the same arrangements in relation to underground phones
and access to the incline shaft were
made at East shaft. Though the
number of the phone at the shaft bottom was changed this would only
have prevented incoming calls
to the old number and would not have
prevented outgoing calls being made, unless there was something wrong
with the phone. He denied
that his version that electricity was not
cut was implausible merely because he agreed with the worker’s
version that water
was cut and that a phone might not have been
working. Under re-examination, he explained that the water supply
which was cut was
not the potable water supply but the ‘service
water’, which was not drinkable. He was not aware of the
drinkable water
supply being cut. He also agreed that at some stage,
the water supply was suspended. The decision to do so was taken in
the interests
of health and safety to prevent the risk of flooding in
the event of a broken pipe. He could not explain why this was not
done
at other mines, but disputed that this and the confiscation of
the cage keys from the cage driver were measures to pressurize
workers
to surface.
[326]
Hokwana maintained that the lights did go out but could not
explain how the fans could have continued
working if the electricity
had been cut. Hokwana also sought to explain that when workers had
phoned for the cage to descend the
phone was working but not at other
times.
[327]
Baijnath could not dispute some contradictions between his evidence
during disciplinary enquiries and his
later written statements about
what time he left the mine on 22 January 2009 and whether he knew
what had been communicated to
workers underground on the morning of
23 January 2009 by Tsotetsi, but attributed this to being mistaken
about the dates.
[328]
Baijnath agreed that when these steps were taken, industrial action
had not yet started at Twistdraai East.
He also did not dispute the
applicants pleaded version that the morning-shift had been addressed
by Tsotetsi at the safety meeting
and told that the mine was aware of
a planned sit-in, and that subsequently they were instructed to end
their shift earlier than
normal. Nevertheless, Baijnath also
testified that when the morning-shift workers were told to surface
early some did but the vast
majority remained underground. He did not
dispute that Tsotetsi had an opportunity to engage in discussion with
the workers underground
about their reasons for not surfacing. Apart
from Tsotetsi instructing them to surface, Hokwana could not recall
if management
came down the mine and issued them with an ultimatum
and could not confirm or dispute Baijnath’s version that the
management
delegation had issued an ultimatum.
[329]
Tsotetsi addressed the afternoon shift and advised them to go home
and only approximately 20 workers remained
behind saying that they
wanted to wait there until the underground workers surfaced. They
would only leave later when security
personnel asked them to. These
workers were regarded as part of the sit-in. He could not comment on
the evidence of Strauss to
the effect that such workers should not
have been dismissed. Baijnath could not remember when the afternoon
shift was cancelled,
but in the light of his statement that Tsotetsi
did not allow the afternoon shift to go underground after only some
of the morning-shift
surfaced at the end of their shift, he agreed
that the afternoon shift had probably been cancelled after 16:00.
[330]
Diyane recalls reporting for the afternoon shift at about 15:15. The
afternoon shift workers had changed
into work-wear but were told to
wait in their different sections. His shift boss told him that he
thought they were waiting because
of the promises made to workers and
the morning-shift had not surfaced. However, he was also aware of the
decision taken at the
stadium to embark on the sit-in, but was not
sure about it. He remembers the afternoon shift being told to return
home at 17:00,
but they were reluctant to because they ‘wanted
to know what the situation was underground’ and did not know
‘for
certain’ that workers had refused to surface and
they thought perhaps they had been injured and that management was
not being
honest about what was happening underground. Paradoxically,
he agreed that Tsotetsi had told them the shift was cancelled due to

the sit-in. Later, he said Tsotetsi merely said the workers did not
want to surface and would not answer the workers who asked
him about
the reasons people were sitting in. The lack of answers made it
difficult for the afternoon shift to return home. Diyane
further
denied they were given ultimatums to leave during the night of 22
January as Baijnath had claimed.
[331]
Sometime after 17:00, Tsotetsi had addressed the afternoon shift. He
had gone underground with Baijnath,
Mr K Nel, Mr J Ngobeni, an HR
consultant, and some security personnel. The cage in the east shaft
could accommodate 100 personnel.
On arriving at the shaft bottom they
exited the cage and Tsotetsi read a written ultimatum in English and
isiZulu to the morning-shift
workers who had not yet surfaced. He
advised them that they would be left behind if they did not surface
with him. Apart from supervisors,
only two other workers, one of whom
had a medical condition, no one entered the cage, despite a delay of
a few minutes. This is
broadly consistent with the version pleaded by
the applicants. Baijnath estimated that the morning-shift workers
converged at the
shaft bottom between 15:00 and 16:00.
[332]
According to Hokwana, Tsotetsi descended with Ngobeni and another
person sometime around 16:00 to 16:30.
She agreed Tsotetsi instructed
them to surface in order to allow the afternoon shift to descend.
However, workers responded that
they could not surface without having
been given an explanation as to what has happened with the wage gap
payment they would only
surface once they received such an
explanation and were told when it would be paid and what had happened
to the LSC. In her evidence
in chief she clarified that they wanted
the shop steward leadership to come and do the clarification. Hokwana
claimed, Tsotetsi
then commented that it was obvious they did not
know that the LSC had been dismissed. He and his party then surfaced.
When confronted
with the fact that Tsotetsi could not have said the
shop stewards were dismissed, because that had not yet happened,
Hokwana did
not dispute this, but maintained that Tsotetsi did say
that. This was also not put to Baijnath.
[333]
Apart from Tsotetsi instructing them to surface, Hokwana could not
remember if management came down the
mine and issued them with an
ultimatum and could not confirm or dispute Baijnath’s version
in that regard.
[334]
Baijnath agreed that there was no engagement between the workers and
the management representatives, nor
was there any violence or
intimidation. He was unable to explain his evidence at the
disciplinary inquiry where he testified to
the effect that the union
had not complied with the recognition agreement, or that the
afternoon shift could have obstructed the
company from doing its
work.
[335]
He also agreed that the keys to the cage were handed over to the
shaft manager and that it was possible
that the cage driver was
phoned at about 18:00 to take an ill worker to the surface.
[336]
Hokwana stated that Tsotetsi came down the mine in the morning of 23
January and surfaced with Chauke and
two others who needed
medication. They received a call later that the LSC said they must
surface, but when they called the cage
it did not come down
immediately.
Bosjesspruit Mine –
Irenedale shaft
[337]
Montgomery, Jabulile Gumede, an artisan and supervisor, Khali and
Tyokolo, testified about the events at
the Irenedale shaft.
[338]
Montgomery was the shaft manager at the time. Originally, Montgomery
said in this statement that the morning
and afternoon shifts were
production shifts and the maintenance shift was the night shift. On
reconsideration, he recalled that
the maintenance shift was the
afternoon shift at the time. The shaft had nine production sections
at the time between one and five
km from the shaft. The cage carried
120 personnel and the area at shaft bottom could accommodate all
production teams.
[339]
As in the case of other mines, at the start of the night-shift on 21
January 2009, the shaft manager: services
(Mr J du Preez) and Andries
Mahlangu, the HR Business partner for the mine, spoke to the shift
about the rumours of industrial
action and encouraged them not to
engage in such conduct. Gumede did not specifically recall the
contents of the memorandum of
20 January 2009 being conveyed to the
night-shift before they commenced working. However, the version that
workers reporting for
the night-shift were told not to participate in
a sit-in was not challenged.
[340]
Montgomery claimed that the operational management at mine level did
not know what the reason for the sit-in
was even though they had been
warned of it. During December 2008, he could not remember receiving
any enquiries from workers about
what they were going to be paid in
January 2009. Nevertheless, as far as he was concerned, there were a
number of structures where
there were meetings with the unions on the
mines apart from meetings at the ER department and none of the issues
underlying the
strike had been raised.
[341]
The next morning, the night-shift did not surface as they should have
at 08:00. The cage driver said that
the key to the cage had been
taken from him and hence he could not surface. An artisan was
dispatched with spare keys in the small
cage and then returned in the
large cage with no more than 20 workers in it. Approximately 200
night-shift workers remained at
shaft bottom.
[342]
The morning-shift also did not surface when it should have at 17:00.
Because of the sit-in, the afternoon
shift which was due to start
16:00 was cancelled and workers reporting for that shift were advised
to go home until the situation
was resolved. Gumede claimed that when
he arrived in an LDV at the shaft bottom after working overtime on
the morning-shift until
about 18:00, there was a barricade not too
far from the shaft bottom station and he saw workers gathered there.
Some were singing
and dancing and others were just sitting. He claims
that that is was only then he learnt of the sit-in. Tyokolo also
claimed to
have arrived after completing overtime and gave a similar
account. He did not call for the cage because another barricade was
blocking
the way to the landline even though there was an individual
who went to the landline from time to time. According to Gumede, he

simply did not know what was happening.
[343]
Gumede’s explanation for remaining underground was that, as a
Supervisor, he could not have left his
team. He had a responsibility
to see that everyone in his team surfaced and it was safer for him to
have remained underground to
monitor the situation.
[344]
Jordaan disputed suggestions that phones were not working at
Bosjesspruit. Given the number of calls received,
it is evident that
there were no reports of faulty phones after the strike. In fact, as
the Irenedale shaft was relatively new
so were the phones. Tyokolo
also claimed that when he arrived at the shaft bottom after working
overtime he came to a barricade
and saw that there was another
barricade blocking the access to the landline although there was an
individual, Mr Makhosandile
Gogo, who would nevertheless use the
landline despite the barrier.
[345]
At about 11:00 on 23 January 2009, Montgomery, Mr J Botha (senior
manager: HR) and J du Preez together with
three security officials
descended to address the miners. On arrival they were greeted by
singing and dancing workers, but were
able to communicate with them.
He told them that they were willing to engage with them about any
issues they wanted to address
but not in this manner. He could not
recall whether managers had been given instructions to engage with
participants in the sit-in
to determine their reasons for staying
underground but he was satisfied that management had provided an
opportunity for engagement
provided they came to the surface. His
primary concern was to address the safety issue and the fact that the
workers had already
been underground for more than 12 hours which was
prohibited. They were told that because their action was illegal and
they were
being given an ultimatum to return to the surface. English
and isiZulu versions of the ultimatum were read out, but while they
were being read, workers sang louder and louder and it was obvious
that they were not paying attention to what was being said. He
agreed
that as a result, they would not have heard what he was saying.
[346]
Gumede claims that around 10:00 he saw the delegation leave the cage,
but denies that they made any attempt
to speak to the workers
gathered near the shaft, still less issued them with ultimatums. He
said that the delegation simply walked
midway to the “stick
pillars” and then returned to the cage and were joined by three
other workers who surfaced with
them. Gumede does mention in his
statement that those underground “continued with singing”
Tyokolo denied seeing the
cage descend at all that morning.
[347]
Montgomery agreed that the workers assembled at the shaft bottom at
that stage did not include the morning-shift
workers, who were
engaged in maintenance work and would have been working at the
sections. According to him, there was no feedback
from workers nor
did they ask to speak to senior management or union officials. The
issue of communicating with the union was a
matter that was left to
the ER department. At that stage, as mentioned previously, Montgomery
stated that he was unaware of the
dispute which had been declared or
the demands underlying the sit-in.
[348]
Montgomery said that no steps were taken at that point to issue final
written warnings in terms of the memorandum
circulated by the ER
department that morning, because disciplinary inquiries would have to
be convened first. Generally, management
would rely on the ER
department to give direction on disciplinary issues.
[349]
Copies of the ultimatum were placed under a stone and they then
surfaced together with 10 workers, being
mostly female and older male
workers. In his written statement Montgomery stated: “When the
cage ascended back to the surface,
some stones were thrown at us.”
Under cross-examination, he explained that the objects were thrown at
the cage
at the stage when the shaft doors had been closed but the
internal roller door of the cage had not yet closed. In other words,
the objects were thrown at this cage before it had actually begun its
ascent. He denied that this explanation was only offered after
the
in
loco
inspection had taken place because he had supposedly
realized that it would have been obvious that, once the roller door
had closed
and the cage was ascending, it would not have been
possible to see objects thrown at the cage. Montgomery said that he
had not
intended to convey the impression that the cage was already
in motion when objects were thrown at it, but simply to say that it

took place when they were about to surface. They could tell that
stones were thrown at it because some of them fragmented when
they
struck the mesh off the outer cage door and fragments fell inside the
lift.
[350]
Further, the safety devices at the shaft station doors were
manipulated causing the cage to trip until the
safety devices had to
be overridden by a foreman on the surface. As a result, it took 20
minutes to ascend as opposed to the normal
four minutes.
[351]
Later, calls were received from workers in the shaft saying that they
wanted to surface. A group of 15 managerial
and supervisory
personnel, including Montgomery, went down with the cage and
approximately 40 or 50 workers returned to the surface.
Montgomery
could not recall exactly what time it was except that it was long
after the first occasion they went down. No ultimatum
was served on
that occasion. Once again he claimed stones and roof bolts were
thrown at the cage when the doors were closed and
the safety device
was manipulated causing the cage to halt until the safety devices
were overridden. He also testified that it
was possible to push an
object through the mesh on the shaft station doors and open the door
handle which would result in causing
the cage to trip. The only other
way that the cage could be stopped would be by the cage driver. He
confirmed what was seen at
the
in loco
inspection, namely that
the internal door of the cage itself was a solid roller door.
[352]
A further group of workers called to say that they wanted to surface.
However, the personnel who had undertaken
the previous operation were
unwilling to do it again because of the behaviour of the strikers and
the workers who wanted to surface
were advised to return using the
incline shaft near the main shaft, which they did. It was common
cause that later on, two other
workers who required chronic
medication were allowed to surface. This appears to have occurred
after 18:00 on 22 January 2009.
Gumede witnessed the small cage
descending and three workers who were on chronic medication requested
to surface and were not prevented
from entering the cage and leaving
the shaft bottom. Tyokolo confirmed this. Both in relation to this
group and in relation to
another worker who surfaced to attend a
funeral, Gumede used the phrase “they let them/him go”,
but he denied that
this meant anyone needed permission to surface. He
could not comment on Montgomery’s evidence that workers phoned
to say
they wanted to surface but until he went down they were not
allowed to surface and he was met with aggression. Under
re-examination
he confirmed Tyokolo’s statement that management
had requested that those on chronic medication ‘be allowed to
leave’
and the three individuals then surfaced.
[353]
Khali, who was working on the morning-shift on 22 January 2009 and
who remains employed by Sasol, said he
was sitting that morning in
the office of another shop steward, Mr Magagula, who was also his
superior at work. That morning, Magagula
was not present because he
had been suspended. When Mr Schoeman came into the office and told
him that the morning-shift had not
surfaced he was not surprised in
light of the decision taken at the meeting.
[354]
According to
Tyokolo,
two male workers and
one female worker who required chronic medication requested to
surface. They also requested Khali to ask management
for methane
testers and lamps so the night-shift could recommence work, but Khali
reported back to them that the request was refused
as the mine
manager was concerned about their safety. According to Gumede, the
same individual whom he saw behind the barrier where
the landline was
is the person who conveyed this request to management. Montgomery was
aware of the request and that it had been
refused out of safety
concerns. Gumede saw nothing wrong with the night-shift recommencing
work on 22 January because they had
been resting.
[355]
On the instruction of the mine manager Khali told workers who did
surface that they did not have to report
for work the following day.
[356]
On 23 January 2009, between 10:00 and 11:00, Montgomery together with
the mine captain, Linda Nzotho (Nzotho),
Mahlangu and Botha descended
using the small cage with a further ultimatum. However, on arriving
at the bottom of the shaft the
outer cage door could not be opened
because workers in the shaft area were preventing it from opening.
Workers would not allow
them to exit the cage and when they tried to
communicate the ultimatum they were drowned out by workers singing
louder. Finally,
they handed the ultimatums by pushing the ultimatums
through the gap between the two shaft gates to a female worker who
threw them
on the ground, after which they surfaced.
[357]
Montgomery agreed that this would have been the only ultimatum served
on the day shift workers who commenced
work on 22 January 2009. Under
cross-examination he elaborated, saying that workers began singing as
soon as the cage started moving.
When they arrived at the shaft
bottom there was an opportunity to start to speak but when he made it
clear they wanted to deliver
an ultimatum the singing started again.
[358]
Gumede was one of the workers gathered at shaft bottom at that time.
He remembered around six men, including
Mahlangu, arriving in the
cage. According to him they exited the caged walked mid-way to the
stick pillars and returned to the
cage, without a word to the sit-in
participants. Three other workers joined them when they surfaced. He
claimed only to have learnt
of the sit-in the previous evening at
about 18:00. His explanation for remaining underground was that, as a
Supervisor, he could
not have left his team and it was safer for him
to have remained underground to monitor the situation.
[359]
The workers underground only surfaced at approximately 15:30 more
than an hour after the ultimatums had
elapsed. Montgomery could not
dispute Tyokolo’s claim that what prompted them to surface was
news of the court interdict
reached them and when they realised the
message to surface came from Mabuyakhulu they did so. Gumede in fact
stated that when the
news of the court order was first received by
the person who had been manning the phone near the cage, an argument
arose between
workers about whether or not the message was true, but
when it became clear that the message had been conveyed by
Mabuyakhulu,
they agreed to surface.
[360]
It had been contended by Tyokolo that when they returned from working
on their day shift after working overtime
until 18h00 they found
workers participating in the sit-in were gathered at the shaft bottom
and that a barricade tape had been
erected in the vicinity.
After the strike when he went underground, Montgomery said he saw no
barricade tape.  In his
view, if Tyokolo had been working
overtime there would have to have been a miner with the group, who
could have lifted the barricade,
but he did not dispute that as an
Emco driver, Tyokolo might have been working overtime.
[361]
In 2009 there was no waiting area at the shaft.
Bosjesspruit Mine –
Main shaft
[362]
Nxumalo, the mine overseer, Jan de Klerk (de Klerk), an acting mine
overseer, and Khomoetsoeu Molise (Molise),
an engineer, testified as
to the events at this mine.
[363]
When he testified, Molise claimed that he knew nothing of the
memorandum issued by the ER department following
the march on 19
January 2009, which was supposed to be conveyed to night-shift
workers before they commenced work on 21 March 2009.
This allegation
was not put to any of Sasol’s witnesses who testified on events
at this shaft.
[364]
De Klerk, who left Sasol in September 2016, testified that he
had been instructed by Mr J Streicher
(Streicher), the Underground
Manager, to go down the mine on 22 January 2009 with Nxumalo to
deliver ultimatums to the night and
day shifts which had remained
underground. De Klerk said that they had copies of the ultimatum in
English and Zulu and Nxumalo
attempted to read the ultimatum but the
workers became aggressive and started singing and dancing while
holding roof bolts. He
claims that they said they would not talk to
them and they should take the ultimatums back with them but they left
copies at the
bottom of the shaft nonetheless.
[365]
In his original written statement, de Klerk he said that he had done
this on the second day of the sit-in,
but when he testified he
claimed that he had been mistaken because he had delivered ultimatums
the previous day. He claims that
he had realized that he made an
error when he was reminded by Nxumalo shortly before the court
proceedings that it was on the first
day of the sit-in that they had
gone down in the cage to deliver ultimatums. His revised version was
also more consistent with
the original sequence of events produced by
management for the Bosjesspruit
mine
, which recorded Nxumalo and de Klerk going underground
shortly after 2:00 on 22 January 2009. In that document, it was
recorded
that workers had responded by saying they wanted their shop
stewards to communicate with them. De Klerk could only say that the

events took place eight years ago and it was only when his attention
was drawn to the other documents that he realized it was on
22
January 2009 he had gone down the shaft.
[366]
Nxumalo had a more detailed recollection of the events. He recalled
going down the shaft after 14:00 with
hard copies of the ultimatums
and that halfway down the shaft they could hear the workers singing.
They exited the cage on their
arrival and addressed workers in
Fanakalo and Zulu that they showed no interest in listening to them
so they decided to return
to the surface leaving ultimatums on the
shaft bottom floor. Nxumalo claimed that the noise was “high”
and they tried
to convey to workers that what they were doing was
unacceptable. He agreed that he was unable to read the ultimatum in
the circumstances.
He agreed that it was possible that the ultimatums
might have been dispersed by the draft in the shaft, but this was
never alleged
by the applicants.
[367]
Nxumalo also disputed the claim in Molise’s statement that,
sometime after the day shift ended on
22 January 2009, he and de
Klerk had descended a second time in the smaller cage sometime after
the day shift ended on 22 January
2009 and called for all miners on
chronic medication or non-UPUSA members to enter the cage and ascend
to the surface.
[368]
Nxumalo was unaware of any directive from management that Mine
Managers and HR personnel should go underground
and establish the
workers’ concerns, which had testified to. Nxumalo confirmed
the evidence of other management personnel,
namely that the aim was
to get workers to surface and then address their demands. He readily
agreed that he would not have been
in a position to address the
concerns of workers about the wage gap. He could not remember if
workers asked him to call someone
else to engage with them while they
were underground: if there had been such a request, he would have
taken it further. A more
reliable indicator of what he recollected
was probably the evidence he gave in a disciplinary inquiry on 2
February 2009, in which
he stated that when he went to deliver the
ultimatums, workers refused to speak to him and were only prepared to
speak to their
shop stewards.
[369]
Molise remembered de Klerk and Nxumalo, descending and throwing
papers out of the cage. Nxumalo said that
they should get into the
cage and surface, but the workers responded by saying that Sasol
should come and address their grievances
underground, whereupon the
cage door closed and Nxumalo and de Klerk surfaced. According to him
no ultimatum was read out. Nxumalo
disputed this statement by Molise
in all respects. He insisted that they had left the cage when they
came to deliver the ultimatums,
but agreed that they were told that
workers wanted Sasol management and not them to address them, at
which point they then left
the ultimatums on the floor and left.
Under cross-examination, it was put to Molise that his version was at
odds with the applicants’
own pleadings where in it was said:
“
The
individual who read out the contents of the papers indicated that the
workers were required to surface; failing which, they
would be
dismissed.”
[370]
On their way to the surface, de Klerk claims that the cage stopped
three times due to interference with
the safety system by the
protesting miners. In his evidence he elaborated that the cage
tripped halfway up the shaft and had to
be reset. Eventually, the
cage was hauled to the surface by the shaft foreman who said that the
limit switch on the shaft door
must have been manipulated. He was not
aware it was possible to determine on the control panel inside the
cage what the cause of
the trip was and relied on the shaft foreman’s
explanation.
[371]
On the other hand, Nxumalo said that the lights on the control panel
in the cage showed that the bottom shaft front gate was
open when the
cage tripped. The lights on the control panel of the lift at
Bosjesspruit main shaft were labelled. He agreed that
it was not
possible to see through the roller door on the cage once it was
closed but it was possible if one was near the door
to see through
gaps at the side of the door. He also explained how it was possible
to open the limit switch a little on the shaft
gate by hand, which
was enough to trip the cage. He readily agreed that he could not
actually see this being done from the inside
the cage. Much was made
of the fact that in the disciplinary inquiry he said that “…
The cage it tripped three times
and one could see that someone was
tampering with safety devices”, whereas in his written
statement he stated that “on
the cage panel showed that the
shaft bottom front gate was opened.” It was suggested that the
reference to the electronic
panel was an attempt to overcome the fact
that the
in loco
inspection had revealed that one could not
see someone tampering with the limit switch from inside the cage. As
far as he could
recall he made the statement before the
in loco
inspection and in any event did not see any contradiction between the
two versions.
[372]
Molise denied that the striking workers had caused the cage to stop,
but did not dispute that it had stopped. Under cross-examination,
he
confirmed that he knew nothing about the cage being stopped, but then
appeared to remember that after the cage had closed workers
would
move away from the cage entrance because of the cold draft in that
area.
[373]
Nxumalo further said that the cage operator had descended with hard
copies of an ultimatum on 23 in January 2009 but on his
return he
advised that the workers did not want to accept them. He mentioned
also that the underground phones were working throughout
the duration
of the sit-in and workers who wished to surface still had the option
of leaving using the incline shaft.
[374]
Molise said that the workers underground were able to communicate
with some shop stewards on the surface who were asking about

conditions underground. They were also able to get food from them.
[375]
He said that on 23 January 2009 they surfaced between 13:100 and
14:00 when one of the UPUSA shop stewards,
P Maleswenye, came down
the mine and told them to surface by 15:30.
Disciplinary process
[376]
Workers charged with participating in the unprotected strike action
were identified using the lamp room
records.
[377]
As witnessed during the
in loco
inspection and confirmed by
Morodi, each worker who goes underground is issued with a lamp and
rescue pack with a unique number.
The worker has the key to unlock
the items from the lamp room and accordingly the absence of the pack
and lamp of a particular
worker in the lamp room is
prima facie
evidence that they are underground. Furthermore, an extra safeguard
is provided by the lamp room attendant who keeps a register
of every
lamp and rescue pack that is removed from, and returned to, the lamp
room as well as recording the times thereof. If a
lamp has not been
returned at the end of a shift and there is no known explanation for
its absence, a search for the relevant individual
will be launched
immediately. These records were used to determine which workers did
not surface after the end of their shifts
on 22 and 23 January 2009.
[378]
Sasol decided to use external chairpersons and initiators with legal
qualifications to conduct the disciplinary
inquiries. All in all,
approximately 100 Inquiries when conducted. The chairpersons and
initiators attended a joint induction process
presented by ER and HR
practitioners in which they were taken through the Sasol disciplinary
code. Strauss denied that they were
instructed how to interpret it or
that they were told that workers on final written warnings should be
dismissed and others should
be issued with final written warnings.
The disciplinary process
according to Sasol
[379]
Morodi testified about the disciplinary proceedings adopted after the
sit-in ended. The HR department issued
a memorandum to the following
effect:
379.1
All workers that participated in the
unprotected industrial action would be suspended until further notice
and would be required
to report back at the mine security offices by
no later than 8:00 on a daily basis.
379.2
Those workers that were kept against their
will would have to be identified; if they were genuinely kept against
their will, they
would be allowed to return to work.
379.3
Template charge sheets were prepared by the ER
team on 26 January 2009 and these were issued to workers on 27
January 2009. Disciplinary
hearings, it was envisaged, would commence
on 29 January 2009.
[380]
In his statement, which he confirmed,
Morodi stated that the Mine Managers and HR Business Partners at each
mine were advised that
eight chairpersons would be available on
Friday 30 January 2009 to conduct hearings at the Bosjesspruit mine
(2 persons), the Brandspruit
mine (3 persons) and the Middelbult mine
(3 persons) and that hearings could be scheduled to commence at 11:00
on that day.
[381]
The memorandum also indicated that, prior
to the commencement of the enquiries, an information session would be
held with the chairpersons
to familiarise them with the respondent’s
internal disciplinary processes. This was necessary because the
persons secured
to chair the disciplinary enquiries were all external
and independent persons practising in the labour field (either as
attorneys
or labour law advisors).  The complainants were also
most external appointments. The reason for this is that the
respondent
simply did not have the capacity to conduct such a large
number of enquiries by making use of its own internal staff
compliment.
Not only would several enquiries be conducted on a
particular day, but in each of these enquiries would be a number of
witnesses
and HR observers to ensure that a fair process is followed.
If the complainants and chairpersons had been internal appointees,
this would literally have crippled the respondent’s
operations.
[382]
As an HR business practitioner, Morodi attended the various
inductions of the chairpersons.
They were familiarised with the
respondent’s disciplinary code and procedure as well as the
standard checklist and minutes
that the respondent typically required
a chairperson of a disciplinary enquiry to adhere to. Only at one
mine (Brandspruit) did
the disciplinary enquiries ultimately commence
on 30 January 2009 At all the other mines the enquiries commenced on
2 February
2009.
[383]
The record of all the enquiries including that of the shop stewards
charged with misconduct relating to
the march on 2019 January 2009
comprised more than 70 lever arch files. During the trial, Morodi
produced records of a sample of
inquiries as an indication of the
general nature of the proceedings. Some of the samples also included
minutes of inquiries of
persons whom Sasol understood to be non-UPUSA
members. At various instances during the examination of witnesses,
reference was
also made to the records of inquiries of a large number
of other workers not forming part of the sample provided.
[384]
Morodi also produced in evidence a comprehensive spreadsheet
summarizing the personal particulars and the
course of disciplinary
inquiries and subsequent appeals relating to each of the workers who
were charged. In the course of comparing
these details with the names
of the applicants on the original list furnished by them it appeared
that some of the applicants cannot
be identified as former workers of
Sasol. There were also a number of persons identified as applicants
who had since passed away.
The spreadsheet also did not reflect the
details of persons against whom charges were withdrawn or were not
found guilty.
[385]
Morodi testified that not only did he attend the enquiries at
Middelbult but also attended proceedings relating
to workers at
iThembalethu shaft.
[386]
From the records provided, it is apparent that inquiries were
conducted in respect of groups of anything
between two and twenty
workers at a time. The size of the group was determined to try and
ensure that workers in the group or from
the same production section
or service area so that the facts pertaining to those workers would
be similar. If it turned out that
a worker’s circumstances were
substantially different from the rest of the group or an worker
wanted to lead evidence of
his specific circumstances a separate
inquiry was sometimes convened for that worker’s evidence.
[387]
Morodi claimed that the chairpersons generally adopted the same
procedure at the Middelbult mine inquiries
that he attended. He
characterized that procedure in the following way:
387.1
Each worker was given notice of the date
and time of the disciplinary enquiry, the location where the enquiry
would be held and
the charge that they were required to meet.
If the enquiry could not continue on the set date for whatever
reason, it would
be postponed to a particular date.
387.2
At the commencement of the enquiry all the
attendees were typically welcomed by the chairperson and the purpose
and roles of the
different persons in the enquiry would be explained.
Thereafter an attendance register would be completed and signed by
all present.
387.3
Thereafter the representatives would be
required to identify themselves and this would be recorded in respect
of each worker.
By way of example, the complainant presenting
the case on behalf of the respondent would be identified, the alleged
transgressor
(the worker), the worker’s representative (if
any), the interpreter (if one was required) and the HR professional
in attendance
to ensure a fair procedure is adopted would all be
identified and recorded on the checklist and minutes of disciplinary
enquiry
or in separate notes kept by the chairperson.
387.4
Thereafter the chairperson would typically
request the complainant to put the charge to the workers and briefly
explain the circumstances
in which it arises. The workers would then
each be asked whether they understood the charge and, if so, would be
required to plead
thereto.  Where there is a single
representative who represents all the workers, that representative
would frequently plead
on behalf of all the workers as a collective.
387.5
Then the complainant would be requested to present
the evidence in relation to the charge. Typically, the evidence would
either
be presented by the complainant himself, in those instances
where the complainant was a company worker intimately involved with

the strike, or witnesses would be led by the complainant where the
complainant was not someone who was involved in the sit-in.
387.6
There was also an opportunity for the
workers through their representatives (where they had representation,
failing which they would
be given an opportunity to do so themselves)
to cross-examine and test the evidence put up by the complainant.
387.7
After the evidence presented on behalf of
the respondent was completed, it would close its case.  The
workers would then be
granted an opportunity to present their
evidence. In some instances, the workers’ representative called
a single witness.
In other instances, each of the workers in question
gave evidence.
387.8
After the evidence was completed the
complainant and the workers’ representative would typically
present closing arguments
in relation to a finding of guilty / not
guilty of the offence. Thereafter a verdict would be handed down with
reasons furnished
for it.
387.9
The chairperson would then in respect of
those workers that had been found guilty of the offence, invite
submissions in relation
to mitigation and aggravation and the
complainant and the representative of the workers would each address
the chairperson on the
appropriate sanction. The chairperson’s
decision regarding sanction would then be delivered.
387.10
Insofar as workers who were found guilty
and were sanctioned, they were then notified of the right to appeal
and the processes to
be followed in this regard.
Most
of the workers that were found guilty and dismissed appealed the
decision.  In respect of each worker that appealed, an
appeal
form would be completed and this would be located in the personnel
file of each worker.
387.11
Separate groups for the appeal hearings
were formed. These groups were sometimes larger in number than the
disciplinary groups,
but were still in respect of workers employed at
the same mine and at the same shaft. Independent appeal chairpersons
were appointed
to consider the appeals. The appeals were conducted on
the basis that the reasons for the appeal would be advanced by the
representative
on behalf of the workers. Notionally the appeal could
be advanced on two bases: procedural unfairness of the disciplinary
process
and substantive unfairness in relation to the finding of
guilty or the severity of the sanction. In each instance workers
would
be granted the opportunity of presenting new evidence should
they wish to do so. The respondent’s representative would be

granted an opportunity to respond hereto where after, the merits of
the appeal would be considered and a finding handed down.
[388]
Morodi explained that the disciplinary and appeal chairpersons were
external consultants employed by the
respondent specifically to
consider the complaint against the transgressors in accordance with
the code and procedures of the respondent
and were expected to come
to an independent finding in relation to the guilt or innocence of
each worker charged. They were also
expected in cases where they made
a guilty finding to consider the appropriate sanction to be handed
down against the workers in
question.  He believed that the
independence of the chairperson is indicated by the fact that some
workers were found not
guilty and not all workers that were found
guilty were necessarily dismissed.
[389]
Responding to specific allegations made by the applicants in their
stated case on the issue of procedural
fairness, Morodi claimed that:
389.1
Individual workers did have the opportunity to ask questions, present
evidence or make submissions. Chairpersons
were specifically advised
during the inductions to give them the opportunity to do so even if
they were represented and to advise
them of their right to do so. In
those inquiries he had attended this did occur and in most of those
inquiries more than one worker
addressed the inquiry. If the evidence
of a single worker was relied on that was an election of the workers
facing that inquiry.
389.2
Internal representation of workers was permitted and was made use of
in most instances. He claimed
to be unaware of any inquiry in which
legal representation was requested by workers.
389.3   Members
of CEPPWAWU were not favoured. In fact, several of them were
dismissed as the schedule indicates. Insofar
as any worker was
removed from an inquiry that would only have occurred where they
alleged that they were intimidated and wish
to give their evidence in
a separate inquiry or if they were unable to attend the scheduled
inquiry and were granted a postponement.
[390]
Some of the specific challenges raised in the course of the trial
concerning the conduct of particular inquiries
are addressed in a bit
more detail below. Ultimately, the applicants did not pursue the
issue of procedural unfairness in relation
to the enquiries as part
of their case on procedural fairness.
Procedural issues
pertaining to the enquiries raised during the trial by the applicants
[391]
One of the issues raised by the applicants was that the inquiries
were chaired and Sasol was represented
by legal representatives, even
though the recognition agreement did not provide for external
representation. Khali said that at
the disciplinary inquiries where
he represented workers Sasol never made a request to be permitted to
be represented by legally
qualified persons as initiators of the
inquiries. Morodi confirmed a similar experience at the enquiry he
attended. Khali’s
evidence was that the chairperson and the
lawyer acting for Sasol as initiator (Mr Rapela) were already present
when the workers
arrived at the inquiry. Similarly, Tyokolo testified
that in the inquiry that he was in, the initiator was a lawyer, one
De Waal,
and he did not request the chairperson, Rapela, for
permission to represent the company at the inquiry. Gqadu, likewise
claimed
that at his enquiry the workers had queried the company being
legally represented, and had asked to be allowed to seek legal
representation
for themselves as the shop-steward, William Thapa, who
was representing them was still undergoing training. However, the
chairperson
rejected their request saying that they were not entitled
to external legal representation. These procedural issues were not
mentioned
in Gqadu’s written statement. He did say that Sasol’s
external legal representative did not ask the chairperson for

permission to appear and it appeared to him that Sasol had more
trained persons assisting it than they did. He did agree that workers

were able to question Sasol’s witnesses and give their version
of events.
[392]
Ketsekile confirmed that this was also the case at his inquiry. He
further claimed that they requested legal
representation but were
told that they could not be legally represented in terms of the rules
applicable at Sasol. Morodi likewise
claimed that they were advised
to elect another worker to represent them since the shop stewards had
been dismissed, but they were
refused the opportunity to be legally
represented. When tested on his recollection of his disciplinary
inquiry and confronted with
the handwritten notes of that inquiry,
Morodi mostly fell back on his standard refrain of not being able to
recall what had happened.
In
[393]
Ketsekile felt that they needed legal representation because the shop
stewards were not adequately trained
to represent them and they
feared that if a lawyer represented Sasol they would lose. On their
arrival at the inquiry, they were
also told that they had to be
represented by one person in the inquiry and should instruct the shop
steward what they wanted him
to say.
[394]
Ketsekile also had said in his statement that during the disciplinary
inquiry which he attended they had
not been permitted to
cross-examine Mr Steyn after he gave evidence, but conceded that the
disciplinary inquiry minute showed that
Xotshana was able to
cross-examine him and that the workers also led their own evidence.
[395]
A more extreme example of alleged misconduct by a chairperson during
one of the inquiries was made by Molise,
though his account was
somewhat difficult to understand. He claimed that when they raised
the issue of legal representation the
chairperson advised them that
she had been hired by Sasol to dismiss them and nothing more. Under
cross-examination he agreed,
despite this statement, that they were
given an opportunity to present their case, but the Indian lady
chairing the inquiry said
she was not there to make their case for
them but to dismiss them. They were then instructed to hand in their
permits and advised
that they could appeal. At the appeal hearing
Sasol was represented by a lawyer. Their appeal was dismissed.
[396]
Zwane, from Twistdraai mine, gave similar evidence in relation to his
enquiry and claimed they had no opportunity
to question the
appointment of the chairperson, even though a typed minute of the
enquiry recorded that workers were asked if they
accepted the
chairperson and nobody objected.
[397]
Gumede said that in his inquiry he had raised the issue that
Mabuyakhulu had been allowed legal representation.
The chairperson
appeared to acknowledge this as a good point and adjourned the
proceedings. However, when the hearing reconvened
they were simply
given a chance to make representations in mitigation.
[398]
It was also alleged that at the inquiry of Batista Chingubo, of
Brandspruit 3E shaft, the chairperson had
expressly stated that he
was there to dismiss everyone. Hattingh who attended the inquiry was
adamant that no such statement had
been made.
[399]
Another complaint made by some applicants was that they had not been
given an opportunity to question Sasol’s
witnesses or present
their case. Bhembe, a shop steward, claimed in his statement that he
was not given an opportunity to question
either Phalane or du Preez,
because they came into the hearing and gave their evidence, then left
the hearing. He modified this
when he testified, to say that he had
expected the pair of them to remain at the hearing because they were
management representatives.
When the handwritten notes of the hearing
were shown to him indicating that he did question Phalane, he could
not agree that he
had done so because the handwritten notes were not
shown to him at the time and, as far as he remembered, Phalane left
after giving
evidence in chief. However, he was willing to accept
other notes indicating that he was given the opportunity to give
evidence
in mitigation.
Appeal hearings
[400]
Tyokolo and Gumede said that at the appeal hearing pertaining to his
section they were told that they could
not repeat what they said at
the disciplinary hearing and that only Khali could speak on their
behalf, after they had been given
an opportunity to tell him what
they wanted him to say. It appeared that the HR representative De
Waal had said something to the
chairperson which implied that he was
telling him they had to be dismissed.
Evaluation
[401]
The individual applicants were all dismissed for participating in the
unprotected strike action which took place on 22 and
23 January 2009.
A number were also dismissed for additional reasons ranging from
assault to harassment, and the like.
[402]
An interim interdict was obtained on 23 January declaring the
industrial action they had embarked on to be unprotected strike

action. Although the applicants had initially contested that they
industrial action did not amount to an unprotected strike, during
the
course of the trial it became common cause and was conceded to be
such in the final argument of the applicants, albeit that
they
conceded it amounted to strike action on a narrow basis. This is
explained in the discussion which follows. The applicants
contend
that their dismissal for participating in the unprotected strike
action was both substantively and procedurally unfair.
Substantive fairness
Legal Principles
[403]
Section 68(5)
of the
Labour Relations Act, 66 of 1995
, establishes
that:
Participation
in a strike that does not comply with the provisions of this Chapter,
or conduct in contemplation or in furtherance
of that strike, may
constitute a fair reason for dismissal. In determining whether or not
the dismissal is fair, the Code of Good
Practice: Dismissal in
Schedule 8 must be taken into account.
Item
6(1) of the Code of Good Practice for Dismissal
[8]
(the code) provides as follows:
“
(1)
Participation in a strike that does not comply with the provisions
of Chapter IV is misconduct.   However, like any other
act
of misconduct, it does not always deserve dismissal.  The
substantive fairness of dismissals 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
.”
[404]
Thus,
section 68
[5] of the LRA and item 6 [1] of the code set the
parameters for the considerations affecting the substantive fairness
of dismissals
for participation in unprotected strike action. The
Constitutional Court reaffirmed that participation in an unprotected
strike
is unacceptable conduct and a serious breach of the employees’
employment contracts.  Once participation in an unprotected

strike is established it falls to the employees to provide an
acceptable explanation for it, viz:
[44]
Item 6(1) of the code provides that while participation in an
unprotected strike amounts to misconduct, this does not automatically

render dismissals substantively fair. The substantive fairness of the
dismissals must be measured against inter alia: (i) the seriousness

of the contravention of the LRA; (ii) the attempts made to comply
with the LRA; and (iii) whether or not the strike was in response
to
unjustified conduct by the employer.
[45]
The LAC held in Mzeku that:
'Once there is no
acceptable explanation for the [workers'] conduct, then it has to be
accepted that the [workers] were guilty of
unacceptable conduct which
was a serious breach of their contracts of employment. … The
only way in which the [workers']
dismissal can justifiably be said to
be substantively unfair is if it can be said that dismissal was not
an appropriate sanction.'
[46]
Therefore, where striking workers engage in unprotected strike
action, the onus rests on the workers to tender an explanation
for
their unlawful conduct, failing which their dismissal will be
regarded as substantively fair, provided dismissal was an appropriate

sanction. In  this matter, no reasons were provided to the
employer by the striking workers that explained their failure to

return to work following the strike becoming unprotected.
[9]
[405]
Earlier, in
National
Union of Metalworkers of South Africa (NUMSA) v CBI Electric African
Cables
[10]
the LAC further elaborated on the other factors that might come into
play in evaluating the substantive fairness of a dismissal
for
participation in an unprotected strike:
“
[28] It
is
clear from the provisions of
s 68(5)
that participation in a
strike that does not comply with the provisions of chapter IV
(strikes and lock-outs) constitutes misconduct
and that a judge who
is called upon to determine the fairness of the dismissal effected on
the ground of employees' participation
in an illegal strike should
consider
not only item 6 of the code but also item 7
which
provides as follows:
'7 Guidelines in cases of
dismissal for misconduct
Any person who is
determining whether dismissal for misconduct is unfair should
consider —
(a)
whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to,
the workplace; and
(b)
if a rule or standard was contravened, whether or not —
(i)
the rule was a valid or reasonable rule or standard;
(ii)  the employee
was aware, or could reasonably be expected to have been aware, of the
rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal was an appropriate sanction for the contravention of the
rule or standard.'
[29]
In my view the determination of substantive fairness of the strike
related dismissal must take place in two stages, first under
item 6
when the strike related enquiry takes place and secondly, under item
7 when the nature of the rule which an employee is
alleged to have
contravened, is considered. It follows that a strike related
dismissal which passes muster under item 6 may nevertheless
fail to
pass substantive fairness requirements under item 7. This is so
because the illegality of the strike is not 'a magic wand
which when
raised renders the dismissal of strikers fair' (National Union of
Metalworkers of SA v VRN Steel (Pty) Ltd (1995) 16
ILJ 128 (IC)). The
employer still bears the onus to prove that the dismissal is fair.
[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.”
[11]
[406]
It is not
entirely clear why the two-stage approach to substantive fairness
necessarily flows from
section 68
[5] as the LAC held. Nevertheless,
support for a dual test of substantive fairness in such cases might
be found in
section 188(2)
of the LRA, which deals with the fairness
of all dismissals which are not on grounds which are automatically
unfair.
[12]
Since
participation in an unprotected strike is a form of misconduct, then
item 7 does fall to be considered because it is part
of the code
which is relevant to misconduct dismissals.
[407]
In any event, in
CBI
the LAC did not find it necessary to
consider factors in item 7 of the code in arriving at its conclusion
that the dismissal of
unprotected strikers in that case was
substantively fair, so the two stage test propounded does not appear
to have been necessary
for the court’s decision, and might well
be an
obiter
statement. Nevertheless, it is clear that item 6
of the code clearly states that the substantive fairness of
unprotected strike
dismissals must be determined “in the light
of the facts of the case”, which include the ones specifically
stated,
but clearly do not exclude others. The ones mentioned by
Grogan, and cited with approval by the LAC in
CBI
are ones
that are all directly relevant to weighing up the gravity of the
misconduct and determination of whether dismissal is
an appropriate
sanction, which is an intrinsic part of any enquiry into the fairness
of a dismissal for misconduct or incapacity,
as mentioned in Item 7
of the Code.
[408]
In so far
as an unprotected strike is a form of misconduct it does bear some
resemblance to an act insubordination. It has been
held that “(a)
failure of an employee to comply with a reasonable and lawful
instruction of an employer or an employee's
challenge to, or defiance
of the authority of the employer may justify a dismissal, provided
that it is wilful (deliberate) and
serious”.
[13]
However strike action is not simply a collective form of
insubordination: it is conduct which not only suborns the employer’s

normal authority to direct the conduct of employees in the
performance of their work, but entails a partial or complete
abandonment
of duties by the strikers, which is intended to cause
economic harm to an employer’s business for the purpose of
pressurising
the employer to meet the strikers’ demands. It
entails a unilateral suspension of the employees’ obligation to
tender
their services as required, in order to achieve a collective
goal. The fact that it is intended to harm the employer’s
business,
even if only for a while, and not merely to challenge the
employer’s authority, makes it a serious form of misconduct,
except
when exercised lawfully.
[409]
Thus,
notwithstanding that a strike will ordinarily constitute serious
misconduct, because strike action is also accepted as a legitimate

economic pressure employees can bring to bear as a counterweight to
the employer’s power to determine conditions of employment
on
its own terms in the context of collective bargaining, it has been
given specific protection both in the Constitution and in
the
LRA.
[14]
The LRA has made it
relatively easy for employees or a union wishing to have recourse to
the economic weapon of a strike in that
context to do so, by
providing a simple procedure under s 64(1) which they need to follow.
[410]
With a few special exceptions like essential services, the broad
limitations the LRA places on exercising the right are where
the
strike would undermine an existing binding agreement (and thereby
undermine the outcome of collective bargaining) or where
the dispute
is one that should not be the subject matter of collective bargaining
but must be resolved by an adjudicative process.
[411]
By complying with a limited number of essential steps, employees can
obtain absolute protection against dismissal for participating
in
peaceful strike action in pursuit of legitimate collective bargaining
goals. A failure to comply with the statutory procedures
is not
simply to be fobbed off as merely an omission to comply with formal
administrative steps. The referral of a dispute to conciliation,
is
intended to provide an opportunity of resolving it without industrial
action by providing the parties with breathing space and
the
assistance of independent mediation expertise. Similarly,
subsequently notifying the employer that the strike will begin,
provides
inter alia
a further opportunity to try and settle
the matter and avert the strike. Incidentally, subjecting the dispute
to that process ordinarily
ought to clarify if the dispute is one
that may be the subject of strike action, or must be resolved by
other means, thereby acting
as a safety mechanism which might prevent
employees unwittingly embarking on an unprotected strike.
[412]
Accordingly,
if employees do not use the appropriate dispute resolution mechanisms
provided by the LRA which are easy to invoke,
and embark on strike
action in respect of a dispute which must be resolved by an
adjudicative process, or if they simply embark
on a strike without
invoking the prior dispute resolution mechanism, they run the risk of
dismissal for what amounts to  serious
misconduct because it
occurs without following the potentially valuable procedural
mechanisms that might make a strike unnecessary.
[15]
Where the dispute is one that could not have been resolved by a
deliberative process of adjudication, and a settlement is reached
in
the period before the strike could take place, the conclusion of an
agreement represents the desired outcome of collective bargaining
and
will have been achieved without inflicting unnecessary economic
damage on the employer.
[413]
Notwithstanding this, the provisions of s 68(5) of the LRA read with
Item 6(1) of the Code provide a framework within which
the fairness
of such dismissals might still be challenged. It is important when
evaluating the facts bearing on substantive fairness
not to see the
factors specified in item 6(1) just as random examples of relevant
facts to be considered, but as essential considerations
which the
legislature chose to identify, whatever other facts might be
relevant. Thus, items 6(1)(b) and (c) point on the one hand
to the
importance of considering whether there was good justification for
the statutory machinery of dispute resolution not being
invoked. Item
6(1)(a) focusses on the extent of the departure from the provisions
of the Act itself. By highlighting these factors
as essential
considerations, the legislature emphasised that employees embarking
on unprotected strike action must provide a good
justification for
not following the statutory dispute resolution.
[414]
Considering
all these factors together with the applicable provisions of Item 6
of the Code will assist the court in determining
whether a dismissal
for participating in an unprotected strike was “proportional to
the misconduct”
[16]
and
therefore appropriate or fair. As the LAC more recently stated:
[35]
The principle that was established in
Hendor
is not that the dismissal of employees because they were on a short
duration strike will inevitably be found to be disproportionate
and
thus substantively unfair. Rather, the principle established there is
that when determining whether the dismissal of striking
employees is
proportional to the misconduct, a court must examine the conduct of
both the employer and employees ‘as to the
manner and conduct
of the strike’.
[17]
Accordingly,
the conduct of the parties during the unprotected strike is also an
important consideration in determining the fairness
of the dismissal.
The parties’
respective submissions on the substantive fairness of the dismissals
Applicants’
submissions
[415]
The applicants identified themselves as belonging to six different
classes, which they argued required separate consideration
in
determining the substantive fairness of the dismissal. The classes
were identified as follows:
415.1
Category 1 Applicants – dismissed employees who reported for
the night shift, underground,
on 21 January 2009, performed their
duties from 22h00 – 08h00 and commenced with the sit-in on the
morning of 22 January,
at the conclusion of their respective shift.
Category 1 applicants were part of the sit-in from 08h00 on 22
January 2009
– 23 January 2009 in the afternoon;
415.2
Category 2 Applicants – dismissed employees who reported for
duty on the morning of 22
January 2009, whose shift was scheduled
from 07h00 – 17h00 and were either instructed to down tools by
Sasol  or concluded
their duties, and joined in on the sit-in
started by Category 1 applicants or commenced with the sit-in
underground themselves.
Category 2 applicants were part of the
sit-in from 17h00 on 22 January 2009 – 23 January 2009 in the
afternoon;
415.3
Category 3 Applicants – dismissed employees who reported for
the afternoon shift, scheduled
from 16h00 – 02h00 underground,
which shift was cancelled by Sasol and preceded, in some instances,
by the locking of the
gates around the perimeter of the shafts in
order to prevent access by the afternoon shift to it’s
premises.  These
employees were not party to the underground
sit-in by Category 1 and 2 applicants but remained on/about Sasol’s
premises,
in support of Category 1 and 2 applicants;
415.4
Category 4 Applicants – those employees who do not report for
work underground and are
mainly stationed in offices on the surface
(e.g. Fulltime Safety Representatives, Surveyors, General Workers).
These employees
were not party to the underground sit-in by Category
1 and 2 applicants but remained on the Sasol’s premises,
following the
conclusion of their respective shits, for various
reasons, including support of the Category 1 and 2 applicants;
415.5
Category 5 Applicants – the peculiar category of dismissed
employees employed by Sasol
as cage drivers.  Category 5
applicants were not party to the underground sit-in but remained on
Sasol’s premises, following
the conclusion of their respective
shifts, for various reasons;
415.6
Category 6 – Sasol employees at Sasol Coal Supply, who stopped
working in support of the
employees conducting the underground
sit-in, but who were issued with final written warnings instead of
being dismissed.
The
applicants argue that not all categories of applicants at each shaft
received ultimatums or received the same number of ultimatums.

Likewise, the duration of the sit-in was not the same for workers in
the different categories. Additionally, workers in categories
3 to 5
neither participated in the sit-in nor received ultimatums which has
a significant bearing on the fairness of their dismissals.
[416]
In summary, the applicants argue that the dismissals were
substantively unfair for the following reasons:
416.1
Some of the applicants dismissed simply did not participate in the
sit-in, for different reasons.
These applicants in the main are
to be found in categories 3, 4 and 5.  The employees in category
6, namely those working
at Sasol Coal Supply, were not dismissed, but
were issued with a final warning valid for four months.
416.2
The dismissal of those applicants who were underground and did
participate in the sit-in was
substantively unfair for one or more of
the following reasons:
416.2.1 Sasol provoked
them to embark on an unprotected strike by not fulfilling its
obligation to completely implement the wage
gap closure process by
January 2009, and by suspending the members of the LSC who were
dealing with the wage gap process.
416.2.2 They made an
attempt to follow proper procedure by declaring a dispute and by
attempting to hand in the memorandum of grievances
so they did not
deliberately disregard the provisions of the LRA.
416.2.3 The ultimatums
issued by Sasol were inadequate as an attempt to end the strike in a
number of respects.
416.2.4 Sasol engaged in
‘unfair bargaining tactics’ by disregarding the UPUSA
plant leadership it had agreed to deal
with
416.2.5 the duration of
the sit-in in respect of each Applicant and in circumstances where
the Applicants reported for work, performed
their duties and only
joined in on the sit-in following the conclusion of their respective
shifts;
416.2.6 the respective
Applicants’ previous disciplinary record or lack thereof, and
length of service; and
416.2.7 the inconsistent
application of discipline in the circumstances. More particularly,
the applicants contend that Sasol was
inconsistent in the following
respects:
416.2.7.1
employees who had participated in the 2006 unprotected strike had
been issued with final written warnings,
in comparison with the
applicants;
416.2.7.2
those employees who had been found guilty of participating in the
sit-in and were issued varying sanctions,
such as various warnings
(including serious warnings) and/or unpaid suspension;
416.2.7.3
SCS employees were issued with verbal warnings, in comparison
to the Category 3 and 4 applicants.
Sasol’s
submissions
[417]
Sasol claims it did not provoke the strike
by its conduct or, alternatively, there was no justification for the
strike insofar as
it is claimed the implementation of the wage gap,
the suspension of LSC members or the refusal to accept the memorandum
of the
marchers on 19 January could have provided such provocation or
justification. More particularly:
417.1
It was not proven that the marchers’
memorandum was not accepted by Tshikovhi;
417.2
In any event, management engaged with the
LSC to try and deal with the grievances;
417.3
The fact that the strike only started three
days later negates the notion that any failure to accept the
memorandum spontaneously
provoked it;
417.4
Sasol did not breach any agreement on the
Wage Gap in implementing the changes it did in January 2009;
417.5
Management did not falsely raise workers’
expectations of what they might receive in January 2009 as a result
of implementing
the Wage Gap agreement.
417.6
Even if the remuneration received in
January 2009 was below the expectations of workers, that could not
have been a factor causing
the strike, because the details of the
January remuneration would not have been known to them when the
strike commenced;
417.7
Bonus payslips issued on 15 January 2009
could not reasonably have fuelled a belief that the workers’
remuneration that month
would not improve;
417.8
The lawful suspension of LSC members,
pending disciplinary enquiries, could not be equated with
disciplinary steps taken against
them, which only occurred after the
strike, and in any event could not legitimise a retaliatory strike;
417.9
The contention that the strike was in part
provoked by workers’ concern that nobody could represent them
in wage gap deliberations
once the LSC members were suspended was
unmerited because there were no negotiations imminent at the time and
Sasol had indicated
its commitment to finalising the outstanding wage
gap issues;
417.10
The suspension of the LSC members did not
render them inaccessible to workers, who in any event had ordinary
shop stewards they
could take problems to;
[418]
On the issue of inconsistent treatment, Sasol argues that
notwithstanding employees having been issued with final written
warnings
in the past, this strike was distinguishable on the
following grounds:
418.1
The sit-in underground exposed workers to
significant safety risks;
418.2
The strike was marred by violence and
intimidation and threatening behaviour towards management; and
418.3
The decision to strike was taken at a
meeting of UPUSA members and, as such, was considered and
orchestrated action by those applicants
who participated therein.
[419]
Sasol did not deal with the applicant’s argument that different
categories of worker required separate consideration
in determining
the fairness of their dismissals.
Evaluation of
Substantive fairness
Causes of the Strike
[420]
Under this heading, the cause or causes of the strike will be
considered, taking account of the reasons advanced by the applicants,

which are mentioned above. Identifying the causes of the strike is
only the first step. The next step is to consider whether the
reasons
for the unprotected strike, in any way mitigated the seriousness of
the misconduct in the light of the considerations relevant
to that
inquiry. This has a bearing both on the issue of whether it was an
understandable reaction to provocative conduct by Sasol
and the
question whether the strike demands were legitimate.
[421]
The first issue concerns whether Sasol failed to meet its commitments
in terms of what had been agreed in the wage gap project

implementation discussions. This essentially concerned two main
issues: the timetable for completing implementation of all aspects
of
the wage gap project, and whether it failed to pay the 0.5% service
increment in January 2009, by not making it in the form
of a
retrospective accumulative increment.
- Failure to implement
all elements of the wage gap scheme in January 2009
[422]
Looking at the events which dominated relations between the UPUSA
shop floor leadership and management prior to the strike,
it appears
that matters began to deteriorate after the meetings to clarify what
would be implemented in January 2009 pursuant to
the wage gap
negotiations.
[423]
What prompted the first meeting being held in December was the HR
managers at the various mines were receiving queries which
they could
not answer about what was going to be implemented in January in
respect of the wage gap project. Matlaba was called
in clarify the
situation. There is a dispute about whether he indicated that the 5%
service allowance would be paid in January.
Tshikovi, who was at the
meeting was certain that he had mentioned that workers would receive
both the 6.5% adjustment increase
and the 0.5% service increment in
January. Against this version, there is only Mabuyakhulu’s
hearsay evidence that he heard
that the 0.5% service increment was
not discussed. According to Tshikovi, it was necessary to call
another meeting to provide further
clarity because Matlaba could not
respond on other features of the wage gap program about which he had
no knowledge, and the UPUSA
leadership was not happy with his
clarification.
[424]
The second meeting on 15 January was attended by a significant number
of the LSC members, including two members whom Mabuyakhulu
identified
as part of the smaller project team concerned with the finer details
of implementing the project, namely Mofokeng and
Lemaoana.
Tshikovi’s recollection of what transpired at that meeting was
vague, except that he recalled that the UPUSA
representatives were
demanding that all aspects of the wage gap project should be
implemented simultaneously and not in a staggered
fashion and that
they declared a dispute. Strauss’s evidence was simply that the
UPUSA representatives were demanding that
the remaining issues that
had to be implemented such as the collapsing of salary bands, salary
scales career progression and the
like had to be implemented
simultaneously with the wage adjustments in January. Strauss also
confirmed that he had conveyed to
the meeting that in January workers
would receive the 6.5% adjustment and the 0.5% service increment. His
response was that it
was impossible to implement everything
simultaneously and that the emphasis had been on implementing the
monetary adjustment, but
that the collapsing of the wage bands, the
transferring of wage personnel to monthly salaried personnel,
determination of minimum
and maximum scales, job titles and career
progression could not be implemented immediately but would have to be
done in phases.
[425]
It was at this point that the LSC members announced that this state
of affairs was unacceptable to them and orally declared
a dispute
before walking out. At that time, it is noteworthy that there was no
evidence to suggest that anything was said about
a problem relating
to the 0.5% service increment not being paid retrospectively.
Nevertheless, it was put to Strauss under cross-examination
that it
was because it was reported at the meeting of 15 January that the
0.5% service increment would not be paid that the first
demand in the
memorandum drawn up by the LSC members for the march on 19 January
was for implementation of the wage gap with immediate
effect and not
in phases. However, if the understanding was that the 0.5% service
increment was not going to be paid at all, it
is odd that this was
not articulated more expressly. It seems more probable that it was
the confirmation that some issues were
not ready for implementation
that was the impetus behind that demand. Moreover, it is difficult to
credit that there could have
been a genuine belief that Sasol was not
intending to pay the increment.  given that Matlaba had
previously confirmed that
the 0.5% increment would be paid and that
Strauss had no reason to represent that it was not going to be paid,
[426]
In this regard, it must also be mentioned that Strauss had testified
that part of the reports he had received from his team
when he
returned from leave was that it had been incorrectly communicated to
employees that the wage gap implementation would not
be implemented
in phases. He could not say whether that had been incorrectly
communicated to employees by Sasol or by their union
representatives.
[427]
If one has regard to the last document recording progress in the wage
gap implementation up to that point, it was the email
of 25 July 2008
issued by Mkhize. Having regard to the content of that email, there
was a strong suggestion that the transition
would be concluded by
January 2009, as implied by the following passage:
All
WP workers will be moved to Monthly Salaried Personnel (MSP) category
with effect from 1st January 2009. To facilitate this
transition, a
project team will be put in place to review and align the wage
personnel job level structure (reduction from 9 job
levels to 4),
career paths, progression and related allowances.
[428]
Although the email also made it clear that the project team still had
tasks to complete, it did not suggest that the transition
would not
be finalized by the end of January 2009. Strauss had testified that
it was unreasonable to believe that all of this could
be done by
January 2009. Mabuyakhulu maintained that if this was the case it had
never been conveyed to him that there was a problem
in finalizing the
wage gap implementation
[429]
Whether the UPUSA representatives on the project team ought to have
been well aware before the end of 2008 that everything
was likely to
be finalized is another question. Mabuyakhulu, testified that in
January the project team was expecting a report
from the Finance
department on the proposed distribution of wage personnel within the
revised salary bands in time for them to
consider it and approve them
for implementation in the January payroll. As mentioned already, this
important allegation was not
contained in his written statement, nor
was it put to any of Sasol’s witnesses who would have had
knowledge about such a
step. He also could not satisfactorily explain
why he did not ask Strauss in January about what had happened to the
expected report
from the finance department, if indeed it was
expected. Consequently, I am not persuaded that such a process was
underway or that
a report was expected as Mabuyakhulu claimed.
[430]
Nonetheless, it does seem it had been intended by the parties that
the wage gap implementation would be finalised by January
2009. All
things considered, it was not unreasonable for there to have been a
degree of disappointment amongst ordinary employees
that the wage gap
project would not be finalized by January 2009. On the other hand, it
seems improbable that the three project
team members would not have
been aware by December 2008 which issues were still outstanding and
that it was unlikely everything
would be completed by January. It
appears that both parties’ representatives failed to keep
employees abreast of the pace
of progress.
[431]
Nevertheless, the existence of reason for discontent does not
necessarily translate into a justification for embarking on

unprotected strike action. This will be discussed further below.
-Failure to pay the 0.5%
service increment on an accumulative retrospective basis in January
2009.
[432]
The first question is whether there was ever any agreement that when
the 0,5% service increment was paid in January 2009,
it would be done
so on the basis that all wage personnel would receive an increment of
0,5% for every year of service with Sasol,
so that, for example, a
person with 11 years’ service could expect a service increment
of 5.5%. There is no document clearly
recording this understanding of
how the service increment would be calculated. In so far as
documentary support for their claim
is concerned, the best the
applicants could do was to contend that their interpretation of the
email of 25 July 2008, penned by
Mkhize, supported the retrospective
and accumulative version of the service increment. The relevant
passage has been cited already,
but is repeated for ease of
comprehension:
“
All WP workers
will be moved to Monthly Salaried Personnel (MSP) category with
effect from 1st January 2009. To facilitate this
transition, a
project team will be put in place to review and align the wage
personnel job level structure (reduction from 9 job
levels to 4),
career paths, progression and related allowances. The 0,5 % annual
service increment
normally paid
to Wage Personnel will be
i
ncorporated
in the alignment process.”
(emphasis
added)
[433]
The applicants contend that Mkhize recorded that the annual service
increment was going to be incorporated in the wage
gap alignment
process. Strauss’s evidence was that it was suggested in the
Blue Horizon report that it should be replaced
because of the
disparities it created, a point which Mabuyakhulu also acknowledged,
but that they had been advised that it could
not be assimilated by
the wage gap adjustment process because it was an industry standard
and would disappear if it was so subsumed.
[434]
Although there was initially some confusion about whether or not wage
personnel had all been receiving the annual service
increment it
appears that those who no longer received it were those who had
reached the 30 years’ service ceiling, after
which it was no
longer payable. It is possible, as Mabuyakhulu testified, that some
wage personnel might not have been credited
with the annual service
increment in the past when they were contract employees, but this was
never an issue put to Sasol’s
witnesses, nor was it the essence
of the applicants’ complaint concerning the 0.5% increment.
[435]
In any event, even if Mkhize did imply that the annual service
increment would be assimilated as part of the wage gap
adjustment
process, that alone could not have given rise to an inference that
there would be any retrospective payment due. Consequently,
based
solely on the email of 25 July 2008, I am not satisfied that the
applicants’ interpretation of the 0,5 % service increment
is
plausible, even if the issue of incorporation was never expressly
corrected in a subsequent email prior to January 2009 to record
that
it would remain a standalone benefit.  As a matter of principle,
there is also no logical reason why the 0.5 % increment
would
naturally have been an incidental, let alone a necessary, component
in any process designed to eliminate discrepancies between
WP and
MSP, especially as the annual service increments had been paid to WP
workers previously. If it had been agreed that the
annual service
increment was to be paid on an accumulated basis, the increases that
would have resulted would have been considerable.
For example, a
worker with 13 or more years’ service would have received an
additional increase least equal to, or more than,
the 6.5 % wage gap
adjustment increase due in January 2019.
[436]
However, the applicants did not rely only on the email as an alleged
source of expectations of a retrospective service
increment, but also
on what they say was reported to them. Essentially, the other sources
of information the applicants’
witnesses claimed to have been
influenced by, which caused them to expect something of a bonanza in
January 2009, were oral reports
received from mine management and HR
officials in the course of their regular safety meetings before
commencing their shifts, and
reports received from shop stewards.
[437]
The versions the applicants’ witnesses provided as to how they
came to know about the January increases, and in
particular the
anticipated retrospective payment of the 0.5 % service increment,
were diverse. Ketsikile claimed to have developed
an expectation of a
substantial increase linked to his years of service and the move to
MSP status from the LSC during meetings.
Gqadu, Bhembe, Matwa,
Diyane, Gumede, Molisi and Manhique, claimed to have learnt of this
from mine managers or other mine management
personnel and HR
personnel at their safety communication meetings. Tyokolo and Matwa
claimed they heard about it both from the
LSC and shaft management.
Tyokolo said that initially it had been Mabuyakhulu who had told them
that the wage gap programme would
result in a bigger improvement like
the one they were engaged in during 2007. This was clearly a
reference to the year when UPUSA
demanded an increase of R 9,000.00.
Molisi claimed that he understood the ‘substantial amount’
he was expecting to
receive was about R9,000.00. Khali did not
mention what the source of his information was, save that he did see
the memorandum
of 25 July 2008. The only other witness to mention
Sasol circulars as a source of the information was Matwa. The fact
that so few
of the applicants’ witnesses referred directly to
the email of 25 July suggests that any supposed ambiguity about the
service
increment it might have conveyed was not the most likely
source of workers’ expectations about receiving an accumulative
service increase.
[438]
All of the managers implicated in having promised generous
improvements denied having done so. Degenaar denied any knowledge
of
the
fanakalo
phrase witnesses claimed he had used to describe
the large amount of the expected increases. Most managers appeared to
have had
limited knowledge of the wage gap process, which was
something dealt with by central management and not at mine level. If
they
had conveyed such optimistic information, the natural question
is where did they get that information from?  Their source of

information was the type of memorandum issued on 25 July by Mkhize.
It is very difficult to believe that Mkhize or the other
HR staff
would have systematically transmitted information about an
accumulative retrospective increase in the 0.5 % service increase

without a single document being produced by the department on that
issue, given the detail that was provided in the other memoranda

issued on the progress in implementing the wage gap. This is
especially so if one bears in mind that the magnitude of such an
increase would have been very significant and would have entailed a
major departure from the existing service increment practice.
[439]
Further, if indeed there was an expectation of substantial increases
because of the anticipated cumulative payment of
the 0.5 % service
increment, which was expected to provide the bulk of any improvement
in remuneration witnesses said they were
anticipating, then it is
extraordinary this did not appear as a distinct demand in the
memorandum the LSC members wanted to present
on 19 January. Even when
Mabuyakhulu mentioned it as the last item in dispute in his dispute
letter, he did not mention the failure
to implement it
retrospectively, but rather cryptically expressed it as a failure by
Sasol to ‘align’ the 0.5 % service
increase with the wage
gap process.
[440]
Considering all the evidence, I am not persuaded that it probably had
been agreed in the wage gap deliberations that
a retrospective annual
service increment would be paid at any time. It is more probable that
there was talk of subsuming the ordinary
0.5% service increment,
which was already being paid to WP workers, in the course of closing
the identified 10% wage gap, but that
this idea was abandoned and it
was retained as a standalone annual payment. Accordingly, there is
also no basis for arguing that
Sasol had breached such an agreement,
which could have been one of the reasons used to justify the strike.
It should also be mentioned
that if there had been such an agreement,
then the appropriate dispute mechanism would have been to enforce it
as a breach of contract
if it could not be enforced as a breach of a
collective agreement as such.
[441]
In any event, assuming that there was a genuine perception that a
wage bonanza would be showered on WP workers in January
2009, it was
the belief that they were not going to receive what was due to them
which was cited as a cause of the strike. When
Strauss met with LSC
representatives on 15 January he reiterated the 6.5 % wage gap
adjustment and the 0.5 % annual service increment
would be paid. When
the shop stewards declared a dispute it was about the rest of the
wage gap issues not being implemented immediately.
That was echoed in
their memorandum of 19 January too. Thus, at 15 January there was no
reason to suppose that the moneys due under
the wage gap
implementation were not going to be paid in January.
[442]
Yet, between then and the strike, the applicants effectively contend
that a belief developed amongst workers that the
increases due in
January would either not be paid at all, or would be much less than
expected. It is argued that the source of
this belief was twofold.
Firstly, it is claimed that when workers received their bonus
payslips on 15 January for the production
bonus earned in December
2008, they saw no change in their remuneration or designation as WP,
which led them to believe the increases
they expected would not be
given effect to. Secondly, they received information that they would
not be paid their wage gap monies.
[443]
In regard to the first mentioned source of information, much was made
of the fact that the production bonus payslips
of 15 January showed
the same base rate of pay as in December 2008. The reason for this
was only clarified when McLelland gave
evidence. He explained that
the base rate was not the actual remuneration of any employee but was
a base rate of remuneration applied
to a group of workers falling
within particular wage bands for the purposes of calculating their
production bonus, and that the
base rate was not linked to the
outcome of substantial of wage negotiations. He also testified that
when the wage increases and
the wage gap adjustment were paid in July
2008 the bonus payslip for that month would also not have reflected
any change in the
base rate. However, he did agree that if employees
were removed from WP to MSP, their base rate would have changed.
Nevertheless,
given that the bonus payslip referred to the previous
month’s production bonus, any change to an employee’s WP
status
in January, would only have reflected in the February bonus
payslip.
[444]
The other sources of information were the discussions at the meeting
held on 18 January and shop stewards. Gqadu heard
from the shop
stewards at that meeting that Sasol would not honour the agreement
relating to wage gap payments. Similarly, Bhembe,
himself a shop
steward, heard this from another UPUSA shop steward before
participating in the march the following day. Mabuyakhulu
also
accepted that shop stewards might have conveyed that certain things
were not going to be implemented following their meeting
with
management on 15 January. Khali, who was also a shop steward, relied
on LSC members for information about the wage gap. Zwane
also
believed that the march of 19 January was prompted by news that the
wage gap implementation would not take place. Though not
present at
the meeting with Strauss on 15 January, Matwa (another ordinary shop
steward) understood that it was at that meeting
that ‘changes
were made with regards to the payment of moneys in January 2009’.
Hokwana heard from other workers
on their way to the march on 19
January, the day after the Sunday meeting, that workers would not get
the money they were expecting.
[445]
In considering the bonus payslip as a source of information, I accept
it might have been possible that some employees
would have believed
changes to their status or remuneration would have been reflected in
those documents, even though they ought
to have been aware that, as
recently as July 2008, that an increase in remuneration would not be
reflected in the bonus payslips,
and certainly not for the bonus
earned the month before an increase was implemented. How widespread
this mistaken belief actually
was, is difficult to gauge. What is
more certain is that, following the meeting on 15 January, it is
likely that LSC members at
that meeting reported to the meeting on 18
January that wage increments relating to the wage gap implementation
were not going
to be implemented in January as expected.
[446]
Although there were witnesses who testified that the decision to
march was taken by workers at that meeting, it is clear
that marches
were already planned by the LSC members. On 16 January they had
already signed a notice of their intention to hand
over a memorandum
to management at the times on which both the marches actually took
place on 19 January. It is important to note
in this regard that the
testimony of these witnesses implied that their understanding was
there would be no improvement in their
remuneration in January in
consequence of implementing the wage gap agreement, and not that the
issue of concern was that the 0.5%
would not be paid retrospectively.
None of the applicants’ testimony was along the lines that
workers were told that what
they would receive by way of an increase
was less than they had expected because the 0.5% increase would not
be paid on an accumulative
basis.
[447]
If the LSC members had simply reported to workers that management had
reneged on the agreement that everything would
be implemented in
January, but that the salary adjustment of 6.5% and the annual
service increment of 0.5% would nevertheless be
paid, it is difficult
to understand how the applicants’, whose testimony is
summarised above, all got the impression that
the monetary portion of
the wage gap agreement was not going to be put into effect at all in
January 2009. The probabilities point
either to a comprehensive
misunderstanding on the part of workers about what the LSC reported
to them about management’s
intention to phase in other aspects
of the wage gap implementation, or to a significant misrepresentation
made to workers about
what had actually transpired at the meeting on
15 January, for which we only have Strauss’s testimony to rely
on. As mentioned
previously, none of the LSC members who attended
that meeting came forward to testify nor did any of them testify
about what was
reported at the meeting with workers on 18 January.
[448]
Whether it was the report that the wage gap implementation would be
done in phases coupled with an erroneous belief
that the later phases
would also entail further salary improvements is impossible to
determine, but it clearly was a widespread
belief that the wage gap
implementation process would not yield what many workers expected in
January because management had decided
not to implement all the
anticipated changes in January.
[449]
I am doubtful about the claims that management falsely pumped up
workers’ expectations in relation to the sums
of money which
would result from the remunerative components of closing the wage
gap. There was no evidence that any of the managers
involved in
reporting had any more information available to them than what was
reduced to writing by the ER department in its circulars,
none of
which foretold the amounts of the size workers were speculating
about. In the absence of a source of information emanating
from Sasol
central management promising such windfalls, it is difficult to
understand why they would have recklessly promised the
same. Most of
the managers’ evidence revealed only a limited familiarity with
what the wage gap project entailed. To give
credence to the view that
they exaggerated what WP employees would be paid in January would
imply a highly elaborate conspiracy
to provoke a strike which was
conceived during 2018, because that could have been the only motive
for doing so in the absence of
evidence that they were supplied with
misleading information from the HR department, which they merely
relayed.
[450]
On the other hand, it is plausible that there was a belief
circulating amongst ordinary members that eliminating wage
gaps
between WP and MSP would not merely put WP employees on the
equivalent level of MSP counterparts, but would also mean WP
employees would be earning the kind of salaries they associated with
MSP employees on higher grades. The disgruntlement over the
wage gap
project which led to the meetings in December and January indicates
that workers did have hopes about what the effect
of fully
implementing it would be. There was also evidence that the R 9000
wage demand which had been abandoned in 2007 by UPUSA,
had somehow
filtered into some workers’ expectations about the benefits of
eliminating the wage gap and was being bandied
about as a possible
figure that might now be realised.  The workers’ belief
that their remuneration expectations in
January 2009 would not be
met, could equally probably have been fuelled simply by being told
that finalising the wage gap implementation
would be delayed beyond
that month, contrary to what they reasonably believed had been
conveyed previously. If they had high expectations
of the full
monetary impact of finalising the transition process, it is not
surprising if they would have been very disappointed
on hearing such
news.
[451]
In any event, the only criticism that can be laid at Sasol’s
door at that stage is that not all issues relating
to the
finalization of the wage gap project could be implemented in January,
and that this fact was not clearly communicated before
the meeting on
31 December 2008. In so far as this was not done, even Mabuyakhulu
conceded that none of those unresolved issues
would have had an
impact on the workers’ remuneration. I am satisfied Sasol did
not play any part in misrepresenting what
workers were due to receive
in January 2009, and to the extent that workers did believe that they
were not going to receive what
was due to them in January, that was
based on misinformation or rumour which emanated elsewhere, and
should have been corrected
by LSC members when they reported to
workers about what transpired at the meeting on 15 January.
Nonetheless, it does not detract
from the reality of the exaggerated
expectations of what the wage gap project would deliver, which appear
to have been widely held
and which would have been unsettled by news
that the wage gap project would not be completely implemented in
January 2019.
[452]
Whether or not the information contained in the January remuneration
payslips probably did fuel dissatisfaction amongst
workers will be
considered below.
-The suspension of the
LSC members
[453]
It is common cause that the LSC members who were suspended were the
team which had steered the wage gap negotiations
since 2007. It is
also common cause that at the time of their suspension, there was, at
the very least, dissatisfaction which had
been building up about the
pace of finalizing implementation of the wage gap agreement.
[454]
It emerged from the evidence that the LSC members were the only UPUSA
members with any real knowledge about the wage
gap deliberations.
More particularly it was the three members who were the UPUSA
representatives in the project team, which was
charged with giving
effect to the implementation process. Sasol maintained that it was
committed to honour its commitments to implement
the normalization of
the wage gap in terms of the measures agreed which were reflected in
the communications of 25 July 2008 and
19 January 2009 and was open
to a constructive resolution of all outstanding issues. In the same
memorandum containing this undertaking,
which was issued on 20
January, the very day the LSC members were all suspended, Sasol also
stated that it was committed “to
continue to sit
with the
wage gap working committee
around the table and finalise
agreements” on specific issues “starting from January
2009” (emphasis added).
[455]
In the course of cross-examining the applicants’ witnesses,
they conceded in more than one instance that they
were unaware of any
imminent negotiations on the wage gap process, which were due to take
place between the time the LSC members
were suspended and their
disciplinary inquiries. On the other hand, at the time of the
suspensions there was no way in which the
applicants would have known
how long that period would be and it was obviously apparent that the
wage gap agreement implementation
had already become a controversial
matter.
[456]
Sasol also made much of the fact that the suspension of the
LSC members, as such, did not legally constitute disciplinary action

notwithstanding the ominously predictive tone in the same circular
that: “
serious disciplinary action will be taken
against
the union leadership
that instigated
it [the marches] with
immediate effect” (emphasis added), which seems to anticipate a
finding and a probable outcome. Quite
apart from this, Tshikovi
conceded that the suspension or dismissal of the LSC, in the context
of incomplete wage gap deliberations
and implementation, would have
had a huge negative impact on workers because the LSC was the only
point of contact at the bargaining
level between them and the
company.
[457]
The suspensions took place on 20 January. The following day, a
meeting of workers was convened at the stadium and it
was at that
meeting that the decision was taken to engage in a sit-in. It is
noteworthy that there was little delay between the
suspension of the
LSC and the inception of the industrial action, whereas the news that
workers would not receive what they were
expecting in monetary terms
did not prompt them to embark on anything more serious than marches
when they were off duty, albeit
that authorization for the marches
was not obtained beforehand.
[458]
A repeated refrain of the applicant’s witnesses was that given
the suspension of the LSC they did not know who
their representatives
in negotiations would be. Given the limited knowledge of other shop
stewards about the wage gap deliberations,
it was not unreasonable of
workers to believe that they had been deprived of a meaningful
channel of representation in the wage
gap process, which was causing
discontentment at the time. It is true that when the sit-in was in
progress, there was no explicit
demand for the uplifting of the LSC
members’ suspension, but the frequently expressed demand by the
workers underground in
a number of the shafts to be addressed by
their leaders or at least by Mabuyakhulu, was obviously an indirect
way of seeking to
re-affirm the LSC members’ status as the
workers chosen representatives, even though they were on suspension
as employees.
[459]
The proximity of the strike to the suspensions and the understandable
belief amongst workers that at a critical juncture
in the wage gap
deliberations, they had been deprived of the benefit of
representatives with an intimate knowledge thereof, in
my view was a
critical factor in the decision to embark on industrial action and
was probably a major cause of the strike, if not
the main one. Sasol
may have been within its rights to suspend most of the LSC members,
but it difficult to see how it could not
have appreciated that its
undertaking to continue sitting with the wage gap working committee
who were all suspended would not
have sounded hollow and insincere in
the circumstances.
[460]
It is true that Mabuyakhulu’s suspension had much less
justification than that of other LSC members, given that
he had not
played any part in initiating the marches, though he was present at
the afternoon march, but there was no case made
out that it would
have made much difference if all the LSC members had been suspended
except for him.
-The failure of Sasol
management to receive the memorandum from the marchers on 19 January.
[461]
On 16 January, after management received the notice of the intended
march from the shop stewards and the dispute declaration
drafted by
Mabuyakhulu, Sasol responded with a letter to the Evander branch of
UPUSA. In the letter Sasol agreed to arrange a special
meeting in
terms of clause 8.3.4 of the recognition agreement to deal with the
dispute, and proposed a meeting at 08:00 on 19 January
“to
address the issues of concern”, whilst also warning the union
that the proposed marches scheduled by the LSC for
10:00 and 17:00
that day were in breach of clause 13.1 of the recognition agreement.
Mabuyakhulu was sent a copy of the letter
and it was Sasol’s
failure to respond directly to him which resulted in his dismissive
response to the proposed meeting at
08:00.
[462]
Strictly speaking, Sasol was following the prescripts of the
recognition agreement by formally notifying the union on
these
issues, but it does not explain why it did not also address the
letter directly to the LSC or Mabuyakhulu as well. After
all, the LSC
had sent the notice of the march and it was Mabuyakhulu who had
penned the dispute letter. It is difficult to understand
how Strauss
could not have appreciated the potential this had to appear as a
slight to the LSC and Mabuyakhulu and to aggravate
relations between
the LSC and Sasol.  That should have been obvious, given that
the LSC was the primary
de facto
mouthpiece of UPUSA members
and that Sasol had also expressly acknowledged it would deal with the
LSC and had been doing so, while
maintaining its obligations towards
the union itself under the recognition agreement. This peculiar
re-orientation of communications
with UPUSA leadership at such a
critical juncture was to recur in the coming days.
[463]
Tshikovi’s undisputed evidence was that when the first march
took place in the morning of 19 January, he advised
Lemaoana no one
from management would receive the march, but that if they dispersed a
meeting with the shop stewards would be arranged
for the afternoon.
This was done, and the meeting was duly convened, with Mabuyakhulu
present. This was the first formal meeting
with management he
attended in January 2009. However, the meeting could not proceed
because the LSC members left the meeting when
the Sasol
representatives refused to proceed in the absence of Strauss, as
demanded by the LSC members. Mabuyakhulu said he had
asked for a
caucus with the LSC members before the meeting was abandoned but this
was refused by Mkhize. However, this was never
put to Strauss during
his cross-examination and was only mentioned for the first time when
Mabuyakhulu testified.
[464]
Strauss agreed that, at the previous meeting on 15 January, the shop
stewards had said that they wanted to speak to
senior management
about the issues raised about the wage gap, and such a request had
never been refused. However, the meeting on
19 January had been
agreed to with the LSC members and a Strauss was then unaware that
there was an objection to his participation
going forward. It must be
remembered that, at this stage, the memorandum had not been presented
to management. There was no evidence
to suggest that the issue of his
attendance or participation had been ventilated with Sasol as a
specific problem prior to the
meeting. Strauss also testified that no
reason for his exclusion from the meeting had been provided by the
LSC at the meeting on
19 January. He was not challenged on this
evidence.
[465]
Both parties accused the other of standing up when the impasse was
reached over Strauss’s presence in the meeting,
but whichever
party did indicate that the meeting was over by so doing, the
immediate cause of that was the refusal of the LSC
to accept the
presence of Strauss as a chosen representative of Sasol, which was
the main reason the meeting collapsed. By insisting
on Strauss’s
exclusion from the meeting, the LSC members were in effect attempting
to impose one of the demands contained
in the memorandum, prior to
any discussion having taken place on that and the other issues in
dispute. By so doing, an opportunity
to address the grievances in the
memorandum or the dispute which had been declared was torpedoed by
the LSC itself.
[466]
At this juncture, the question of whether or not Mkhize said that she
would ‘see’ the shop stewards at the
march in the
afternoon as claimed by Mabuyakhulu, needs to be mentioned. Tshikovi
did not remember her saying this and only recalled
the LSC
representatives standing up when she refused to ‘excuse’
Strauss from the meeting. Strauss denied that Mkhize
ever made such a
statement. There was also no evidence that she was present when the
march arrived at Sasol’s office that
afternoon. Given that the
company had previously warned that the marches would be in breach of
the recognition agreement and that
the management delegation was not
prepared to meet with the LSC on terms dictated by LSC, it seems
somewhat improbable that Mkhize
would nevertheless have indicated
that she would ‘see’ the representatives at the march, as
if she would be present
to receive them.
[467]
The undisputed evidence of Tshikovi was that, when the morning march
arrived at the company offices, Lemaoana told him
they had come to
present a memorandum to management. He responded that there was
nobody to receive the marchers and that is when
the meeting with the
LSC at 14h30 was arranged. It was never put to Tshikovi that he
received the memorandum then or later in the
afternoon. The failure
to receive the memorandum was another factor which the applicants’
witnesses mentioned as motivating
workers to go on strike. The
context in which the memorandum was not received, namely that the
march had not been authorised and
that an opportunity to present the
memorandum in the meeting the same day had been scuppered by the
demand that Strauss leave the
meeting, does not appear to have been
reported to workers when they were informed that management would not
accept it. Presented
in stark terms as a simple refusal to accept a
memorandum and stripped of any details about the context in which
that happened,
and without knowing that management had proposed and
agreed to meet with the LSC to discuss matters, it is not surprising
that
UPUSA members might have got the impression that management did
not want to engage with their representatives. Add this to the
improbability that the suspended shop stewards would be able to
continue to represent them in wage gap negotiations in the near
term,
the impetus for a demonstration of power to compel Sasol to engage
with the UPUSA membership and their concerns would have
naturally
grown amongst the workers.  It is difficult to see how ordinary
employees could have had any confidence that channels
of
communication with Sasol remained open.
[468]
In any event, I am satisfied that the news that Sasol would not
accept the memorandum after workers had endorsed the
proposal by the
LSC to do so, was another significant factor in precipitating the
strike.
-Information obtained
from the January salary payslips
[469]
The applicants had claimed that the strike was also caused by the
realization by workers that they were not going to receive
the wage
gap monies they expected in their January remuneration. Leaving aside
the question whether expectations of a significant
increase were
justified or existed, which has been discussed above, the issue is
whether they probably were aware of what they
would receive in their
January remuneration when the decision was taken at the meeting on 21
January to embarked on a sit-in.
[470]
Tshikovhi had indicated that payslips would have been available two
days before payday and agreed that they would have received
them
between the 20
th
and 21
st
of January. However,
Venter’s evidence was that payslips would only be distributed
to the mines on the 21
st
of the month and would be issued
to individual employees between then and the 23
rd
of the
month. Morodi indicated that the last payroll run would be done on or
about the 19
th
of the month and employees would have
access to their payslips around the 21
st
of the month.
Mabuyakhulu’s own evidence that there would be sufficient time
to review the Finance department’s expected
proposal on
collapsed wage bands, provided this could be done on 19 and 20
January because that would still be in time for the
final payroll, is
also more in keeping with a payslip distribution date no earlier than
21 January.
[471]
Ketsekile indicated that, at the meeting on 18 January, workers who
had access to Sasol’s computer systems had circulated

information that there would be no additional money in the workers’
January payslips, but his evidence about this was vague
and was not
mentioned by any of the other witnesses. Makoko claimed to have
realized that he was not going to get the money he
expected after he
saw his payslip but did not mention this as the source of his
information in his statement made in his disciplinary
inquiry where
he had claimed the information was received from the union
leadership. The majority of the applicants’ witnesses
seem to
have attributed the source of their knowledge either to the absence
of any change in the bonus payslip and, or alternatively,
to what
they were advised by shop stewards.
[472]
It is impossible to gauge from the evidence the extent to which the
January payslips had reached workers hands by 21 January,
but it
seems unlikely that any were issued
before
that date. Given
that the evidence suggests workers were already informed at the
meeting on 18 January that they were not going
to get the increase as
they were expecting, it is more likely that this was the main source
of information about the implementation
of the monetary component of
the wage gap adjustments. In my view, the January payslips are
unlikely to have played any significant
role in causing workers to
decide to go on strike at the meeting on 21 January.
-
Conclusion
[473]
In light of the above, the main reason for the strike was probably
the news of the suspension of the LSC members in the context
of the
discontent over the progress in implementing the wage gap agreement
and a belief that they would not receive all the significant

financial benefits that they supposed would flow from it in January
2009. Coupled with this was an impression amongst the workers
that
management was not interested in hearing workers’ grievances
because Sasol would not accept a memorandum containing
them and also
being unaware that management was in fact willing to meet and talk
with the shop stewards on the day the marches
took place. These
reasons are also broadly consistent with the issues which the
applicant’s witnesses claimed were discussed
at the mass
meeting on 21 January. This conclusion is reinforced by the way
workers responded to management during the sit-in.
A recurrent
theme in the demands expressed by workers underground was either to
be allowed to establish communication with the
suspended leaders, in
particular Mabuyakhulu, or for senior management to come and engage
with them directly about wage gap issues
and the suspensions. None of
those demands articulated anything specifically relating to
non-payment of an accumulative 0.5 % service
increment, though there
was talk of the wage gap moneys not being paid.
[474]
However, I am not satisfied that the fact that workers had high
expectations of increases in remuneration can be attributed
to Sasol.
Even if delays in finalizing every aspect of the wage gap agreement
by January 2009 was partly or mainly Sasol’s
fault, which is
not entirely clear, it is apparent that the main source of
disappointment was not the delay as such but a belief
that the
financial benefits of moving to MPS conditions would be much greater
than they actually were. There is good reason to
believe that even if
every other aspect of the wage gap agreement implementation had been
possible to implement in January, the
misinformed belief that the
financial benefits of the transition would be much greater, would
have still caused considerable discontent.
As mentioned, the
suspension of LSC members pending inquiries for initiating
unauthorized marches was not unlawful, but given the
manifestly more
limited involvement of Mabuyakhulu in the marches, his suspension at
a time of rising tension was ill-judged. Nevertheless,
even if he
alone among the LSC members had not been suspended, the suspension of
the rest of them would in all likelihood still
have given impetus to
the decision to sit-in.
[475]
As far as management’s refusal to accept the memorandum of the
marchers is concerned it was not illegitimate to refuse
to receive
the memorandum when it had made it clear that the marches were not
authorized and Sasol nonetheless acted reasonably
in trying to
convene a meeting where those issues that prompted the marches could
have been discussed. At best, it was inept of
Sasol to communicate
directly in correspondence with the UPUSA officials, which was at
odds with the previously accepted channel
of communication, but this
was not advanced as a reason why workers embarked on the sit-in, so
cannot be considered a contributory
factor though this change in
communication channels takes on more significance when considering
steps taken by Sasol to try and
end the strike once it had started.
Steps taken to comply
with the dispute procedures of the LRA prior to the strike and after
the decision was made to strike.
[476]
The only steps taken by the UPUSA leadership employed by Sasol was
the declaration of a dispute and their attempt to submit
a
memorandum, albeit in the course of an unauthorized march. As
mentioned above, the meeting with management on the day of the

marches provided an opportunity to debate issues of concern to the
workers. Those discussions could have embraced both the issues
in the
memorandum and issues in the dispute declaration, even though
management had also undertaken to convene a special meeting
for the
discussion of the dispute. However, that opportunity was lost because
of the LSC members’ cavalier insistence on
Strauss being
excluded from the meeting, which had been convened on Sasol’s
initiative.
[477]
Despite having declared the dispute, there was no attempt to follow
through the procedure provided in the recognition agreement.
Thus, no
attempt was made to set a date for the special meeting which Sasol
had undertaken to hold despite it being made clear
it was willing to
do so. In so far as the workers intended to strike, no attempt was
made to refer the dispute to mediation as
required by the recognition
agreement, nor was there any attempt to invoke the conciliation
machinery of the LRA. Obviously, there
was also no explicit prior
warning given to management of the impending action. Following the
meeting on 21 January no clear demand
was conveyed before the strike
commenced that might have led to an engagement that might have
averted it.
[478]
It must also be noted that the strike was not an immediate and
spontaneous response even when the LSC members were suspended.
A mass
meeting was held a day after the suspensions. A clear plan of action
was decided upon in advance and was put into action
simultaneously
and consistently across all the affected shafts.
[479]
In the main, the tenor of the evidence of the applicants’
witnesses about what transpired at the mass meeting on 21
January was
that the meeting was conducted by the ordinary members themselves
with no input from any of the LSC members or even
ordinary shop
stewards, if indeed they were even present. That none of the
leadership was present nor made any input is very difficult
to accept
as plausible. Given that one of the biggest concerns of the workers
was that the leaders whom they trusted would no longer
be able to
represent them in discussions with management and given their
confidence and faith in that leadership, in particular
that of
Mabuyakhulu, it hard to believe that the meeting would not have
wanted to hear and obtain guidance from those very leaders
on what to
do about the challenges facing them. It was suggested by one witness
that the LSC members could not speak at the meeting
because they no
longer had a ‘voice’ following their suspensions, but
that explanation is irreconcilable with the fact
that the workers
clearly still recognized them as their legitimate leaders, and that
the strike, directly or indirectly, sought
to persuade Sasol to
accept the continued legitimacy of the LSC members as the
representatives of UPUSA members.
[480]
Whatever transpired at the meeting, there was also no evidence that
the shop steward leadership of UPUSA did anything to dissuade
members
from embarking on industrial action prior to the dispute procedure
being exhausted, or alternatively, to persuade them
to follow the
appropriate dispute resolution mechanisms for different elements of
the dispute.
[481]
Prior to the commencement of the strike, Sasol did make some efforts
to warn workers that unprotected strike action could
result in
disciplinary action. Firstly, on 20 January, following the suspension
of the LSC members a circular was issued not only
indicating that
serious disciplinary action was going to be taken against them, but
also warning that other workers who participated
in further
unprotected industrial action would also be subject to disciplinary
measures. However, how or when this was supposedly
communicated to
all the applicants is unclear. Neither Ketsikile nor Matwa admitted
knowledge of the circular.
[482]
Further, there was evidence that during the course of the morning of
21 January there had been a communication from the HR
department to
the mines to warn workers not to participate in any further
unprotected industrial action following the two marches
and advising
that disciplinary action was being taken in relation to the marches.
This appears to have been patchily conveyed as
discussed below.
[483]
There was evidence that the night shifts of 21 January at
Bosjesspruit mine – Irenedale shaft and both Middelbult West

and Main shafts (where the night shifts were both production shifts)
were warned prior to starting work not to participate in a
sit-in. At
Twistdraai, for reasons which were not explained, the night-shift of
21 January never participated in the sit-in and
surfaced as usual the
next morning. There was evidence also that the morning-shift at
Twistdraai Central shaft was warned not to
participate in a sit-in.
The evidence of Enoch Zwane that Moeketsi merely ‘mentioned’
the sit-tin to the morning-shift
at Twistdraai Central shaft, without
warning workers not to join it is somewhat improbable, and the
variations in his version of
this suggested he was being evasive on
the issue. Hokwana likewise agreed the morning-shift at Twistdraai
East was advised about
the sit-in before the commencement of the
shift, but denied hearing that participating in it would be unlawful.
Again it seems
inherently improbable management would merely have
publicised the sit-in without issuing an accompanying warning not to
become
involved in it. In this regard, I am not persuaded that
management personnel who did address workers before they started
would
merely have mentioned the existence of the sit-in as if it was
just an item of passing interest to the workers they were
addressing.
The most likely purpose of raising the sit-in would
have been to dissuade them from following suit.
[484]
At four shafts there was no evidence of night-shift workers having
been addressed prior to the commencement of their shift
and where
they also did not surface at the end of their shift, namely
Middelbult Mine – iThembalethu shaft and the three
shafts at
Brandspruit mine. Consequently, with those four exceptions and the
anomalous case of Twistdraai where the night-shift
did not
participate in the sit-in, I am satisfied some attempts were made to
warn workers not to participate in a sit-in before
they commenced
work and that Sasol did not simply wait for the industrial action to
unfold.
Steps taken by the
parties to end the strike while it was in progress
-Ultimatums and
interaction with participants in sit-in
[485]
The first point that needs to be made is that the issuing of
ultimatums was directed centrally from the HR department of Sasol,
in
the sense that draft ultimatums were sent at regular intervals to the
different mines. The number and regularity with which
ultimatums were
actually served was ultimately dependent on mine management, the
response of participants in the sit-in to attempts
to serve
ultimatums and the particular circumstances prevailing at each shaft.
The detailed evidence relating to ultimatums and
pre-strike warnings
was dealt above in the discussion of evidence about events at each
shaft.
[486]
At four shafts (Middelbult Mine – iThembalethu shaft,
Middelbult Mine – West shaft, Brandspruit Mine – Number
2
shaft and Bosjesspruit Mine – Irenedale shaft) an attempt was
made in the morning of 22 January, to get night-shift workers
to
surface by advising them that it was unlawful to stay underground
after their shift ended and if they wanted to raise issues
with
management that could be done after they surfaced.
[487]
On 22 January, attempts were made to serve two ultimatums with
greater or lesser degrees of success at six shafts (Middelbult
Mine –
iThembalethu shaft, Middelbult Mine – West shaft, Brandspruit
Mine – Number 2 shaft, Brandspruit Mine
– Number 3E shaft
and Twistdraai Mine – Central shaft). At three other shafts
(Bosjesspruit Mine – Irenedale
shaft, Bosjesspruit Mine –
Main shaft and Twistdraai Mine – East shaft) at least one
attempt was made to serve an ultimatum
on 22 January. Except possibly
at Twistdraai Central and East shafts all attempts to serve
ultimatums on 22 January would have
been made before the
morning-shift stopped work and joined the sit-in.
[488]
On 23 January attempts were made to serve a single ultimatum at
Brandspruit Mine – Main shaft, Brandspruit Mine –
Number
2 shaft, Brandspruit Mine – Number 3E shaft and Bosjesspruit
Mine – Irenedale shaft, again with varying success.
Thus, by 23
January, also taking into account the pre-emptive steps adopted at
both Twistdraai shafts, even if morning-shift workers
at six shafts
had been told nothing by night-shift workers and had seen no copies
of written ultimatums, in all probability they
would have been aware
of an attempt by management to serve an ultimatum on them.
[489]
At five shafts on three mines (Middelbult Mine – iThembalethu
shaft (service shaft), Middelbult Mine – West shaft,

Brandspruit Mine – Number 2 shaft, Brandspruit Mine –
Number 3E shaft and Twistdraai Mine – East shaft) where
there
was evidence of workers’ response to management addressing
them, it was reported that workers either would not engage
with
management or demanded to speak to senior management or LSC members,
or alternatively they would not leave until either senior
management
or the shop stewards came and explained why the wage gap money had
not been paid or, in some cases, why the LSC members
had been
suspended. These reported responses were broadly in keeping with the
main objects of the sit-in as discussed at the meeting
on 21 January,
namely to make senior management engage with them about the wage gap
and the LSC suspension.  A corollary of
wanting to communicate
with senior Sasol management was that the workers would not engage in
discussion with local mine management.
[490]
Another related aspect of the conduct of strikers in responding to
the ultimatums must be highlighted. Even where workers
did not
attempt to disrupt the issuing of an ultimatum they would not accept
any written copies.  In other cases, the conduct
of workers by
singing and dancing rendered attempts to read ultimatums futile and,
in some instances, the conduct of strikers in
the vicinity of the
cage when it descended made it potentially hazardous to exit the
cage.
[491]
To understand what role if any the ultimatums might have played, it
is also instructive to consider what brought the strike
to an end at
the different shafts. At six shafts workers only surfaced after being
advised to do so by one of the three LSC members
making up the UPUSA
wage gap project team delegates. At Middelbult Mine –
iThembalethu shaft (service shaft), Middelbult
Mine – Main
shaft, Bosjesspruit Mine – Main shaft and Brandspruit Mine –
Number 3E shaft workers surfaced after
ordinary shop stewards were
made aware of the interdict. What this shows is that, on the whole,
the only time workers in the sit-in
heeded the call to surface was
when they got the call from their own leadership to do so and that
call only came after the interdict
was obtained. Nevertheless, once
news of the interdict was conveyed by recognised leaders the strike
ended quite quickly.
[492]
It is probable the shop steward leadership did motivate the call to
surface on the basis of the court interdict. It is also
reasonable to
infer that workers waited for their shop stewards’ word, and in
the main, that of LSC members before they were
prepared to so
surface. It is also noteworthy that, unlike other unprotected strikes
where the return to normality is the result
of communications and
undertakings between union representatives and the employer, the
UPUSA Sasol leadership and Sasol did not
negotiate an end to the
strike. Only at Twistdraai – Central shaft did management’s
intervention to persuade workers
to surface also play a role. Even in
that case workers’ still sought Mofokeng’s endorsement
before they would do so.
In none of the shafts was the decision to
surface prompted by receipt of an ultimatum which was about to
expire.
[493]
In any event, the applicants’ argument relating to the
ultimatums as an issue affecting the substantive fairness of
the
dismissals focussed rather on the failure of management to
communicate with the LSC members and, in particular Mabuyakhulu.

Further, a recurrent theme in much of the cross-examination of
Sasol’s management witnesses who interacted with the strikers

was questioning Sasol’s failure to engage with them about the
reasons for the sit-in rather than fixating on getting them
to
surface or issuing them with ultimatums.  It is only in relation
to procedural fairness that the applicants raise the fact
that
certain strikers were never served with ultimatums.
[494]
It is true that the same number of ultimatums were not served on all
employees, but it would be wrong to elevate to an inviolable

principle that a certain number of ultimatums must be issued before
an employer is entitled to consider dismissing employees. In
fact, as
the requirement of providing an opportunity to unprotected strikers
to be heard before dismissing them has been strengthened
by the
courts, the significance of a final ultimatum being issued arguably
does not assume the same importance it did when it was
accepted that
the final ultimatum could also convey the message that if it was not
complied with dismissal would follow automatically.
That is not to
say the issuing of ultimatums might not still be relevant to the
issue of procedural fairness.
-SMS messages sent by
Sasol
[495]
A bundle of proof of SMS transmissions to employees, whose cell phone
numbers Sasol had on record, was submitted in evidence.
The fact that
such SMSs were transmitted was not disputed, though individual
applicants claim not to have received them. The first
SMS urging
workers not to embark on a sit-in or go slow and warning that such
conduct would be regarded as unprotected industrial
action leading to
serious disciplinary action was sent at 18:02 on 22 January and at
02:19 the following morning.  By this
stage, any of the
night-shift workers of 21 January and morning-shift workers of 22
January who had not surfaced would already
have been underground and
would not have received these. Nor would two other SMS messages sent
on the same day at 18:33 and 19:03
about UPUSA’s head office
stance on the matter have reached them.
-Efforts made by Sasol to
communicate with the union and shop floor representatives
[496]
Sasol was bound by its recognition agreement with UPUSA, which
formally recognized the union as the collective bargaining

representative of its WP members. The agreement also recognized the
right of elected and accredited “union representatives”

elected by UPUSA members to represent members on behalf of the union
and to negotiate and consult with the company in terms of
the
agreement. In the case of the dismissal of the LSC members, one of
the criticisms raised in cross-examination of Sasol witnesses
was
that in attempting to address the LSC members’ involvement in
organizing the unauthorized marches, the company had resorted

directly to disciplinary action instead of invoking clause 7.9 of the
recognition agreement. That provision stipulated that if
Sasol had
any grievances regarding “… the manner in which an
accredited union representative is conducting himself”
the
matter would be dealt with by a full-time official of the union and a
representative of the company. Under normal circumstances
where the
relationship between shop stewards and union officials is intact such
criticism might be well deserved, but in this case
there was no
relationship with the local Evander organiser or the general
secretary and had not been for some time. Little purpose
would have
been served in invoking that provision in this instance.
[497]
In consequence of suspending the entire LSC, including Mabuyakhulu,
pending disciplinary action, the only remaining union
representatives
on 20 January were the ordinary shop stewards. On the evidence, it is
fair to say that these shop stewards did
not seem to play any company
wide role, unlike the LSC members. In any event, for the most part
they were ignored by management
as a channel of communication in
addressing the strike action, apart from Middelbult where they were
used to communicate ultimatums,
but not as representatives to engage
with on the causes of the strike.
[498]
The rift between the Sasol-based leadership of UPUSA and the UPUSA
Evander branch and Johannesburg office, as represented
by the
officials Lepheane and Luthuli, could hardly have been deeper at the
time the strike took place. Since the contested National
Congress in
September 2008 and Sasol’s letter to UPUSA in early October the
same year, Sasol had committed itself to working
with the local
executive leadership until the internal leadership issues had been
resolved. In fact, in relation to the wage gap
project it had already
been dealing with the local leadership for a long time before that.
Since the congress, Luthuli’s
status as general secretary of
UPUSA was a contested issue.
[499]
By the time the strike began, Sasol management knew there had been
rumblings about the implementation of the wage gap project
and the
contents of the memorandum and the dispute declaration, all of which
pointed to the wage gap implementation as a source
of discontent.
Sasol had been dealing exclusively with the LSC on the wage gap.
Nevertheless, Sasol’s HR manager, Mkhize
decided to phone and
write to Luthuli to assist in resolving the “emergency”
presented by the strike. In a second letter
she sent mid-morning on
22 January, in anticipation of meeting with the officials at 15:00,
Mkhize obliquely recognized the importance
of Mabuyakhulu’s
role in the situation in the following cryptic passage, alluded to
previously in the judgment:
“
In
preparation for the meeting we would appreciate it if you could speak
to the local Union coordinator Victor Mabuyakhulu, and
give us
feedback on how you intend to address the situation from a union
perspective.”
The
letter in which this appears was written after 10:24, which is when
the first letter was sent to UPUSA. By that stage it is
reasonable to
assume that any feedback about demands by workers at Middelbult Mine,
Twistraai - East shaft and Bosjesspruit –
Main shaft to be
addressed by LSC members ought to have filtered back to the central
ER and HR departments. Strauss could only
recall mine managers
reporting that workers would not speak to them at all. It seems
somewhat odd that they would only have mentioned
that and omitted to
mention anything else, which workers had conveyed to them.
[500]
In any event, though Strauss was at a loss to explain why Mkhize had
suggested Mabuyakhulu be spoken to by UPUSA and Mkhize
never gave
evidence to explain herself, it must have been obvious to Sasol HR
and ER personnel that if any UPUSA leader might be
able to influence
the situation it was him and, perhaps to a lesser extent, the other
LSC members. The passage in Mkhize’s
letter can only be
interpreted as a convoluted way of recognizing his importance in any
solution, without attempting to deal with
him directly. Nonetheless,
given the atrocious relationship between the officials and the shop
steward leadership at Sasol, it
should have been equally obvious that
trying to get Mabuyakhulu’s co-operation using Luthuli as an
intermediary would have
been a doomed exercise. In the end, no
reasonable explanation was provided why Sasol did not attempt to
communicate with Mabuyakhulu
or the other LSC members,
notwithstanding that, formally speaking, their suspension was only
from work. In passing, it appears
that their status as union office
bearers would not have been altered by their suspension. It ought to
have been obvious that the
persons Sasol really needed to communicate
with if it was looking for assistance to resolve the situation were
the LSC members.
[501]
I accept Sasol would have felt obliged to also communicate with the
ostensible general secretary of UPUSA, because the recognition

agreement was between UPUSA and Sasol, but from an industrial
relations perspective, it was obviously a complete non-starter as
a
way of resolving the strike, given that workers only recognised the
Sasol based UPUSA leaders and that Sasol itself recognised
them both
formally and practically as the UPUSA members’ representatives.
In the circumstances, Sasol’s insistence
on only communicating
directly with the officials whom it knew to be thoroughly
discredited, is astonishing and it could not genuinely
have done that
as a
bona fide
attempt to end the strike. Accordingly,
Mkhize’s communications with UPUSA cannot be taken as a serious
attempt to resolve
the situation, but rather as a way of formally
satisfying the requirement of communicating with the union.
[502]
As with many other considerations that have to be assessed in
weighing up the fairness of dismissals in an unprotected strike,
it
cannot be said with any certainty that if Sasol had acted differently
and asked the LSC members to intervene on 22 January to
try and solve
the strike, that the strike would have ended that day, without
management agreeing to bargain with the strikers.
Nonetheless, the
court must consider in evaluating the fairness of the dismissals
whether parties omitted to take obvious steps
which should have been
pursued in an attempt to end the disruption once the strike started.
[503]
It is also true that the LSC members took no initiative to intervene
until the interdict was handed down, though there was
evidence that
some telephonic communication between them and the workers
underground did occur. On the other hand, one must also
take account
of the fact that they had effectively been excluded from the
workplace by their suspension and there was certainly
a perception
amongst workers, which was not unreasonable, that the suspension
applied to their role as representatives too at least
as far as Sasol
was concerned. Management’s unwillingness to engage with them
directly during the strike suggests Sasol indeed
have held that view,
though this was never articulated by any of Sasol’s witnesses
as a reason for not dealing with the LSC
members over the strike.
[504]
Unsurprisingly, the officials in Evander and Johannesburg, kept their
distance from the dispute, while formally condemning
the strike
action. There was no evidence they took any steps to contact any of
the union leadership at Sasol and confined themselves
to
communicating with the company. That said, it was obvious it could
never have played a constructive role in resolving the strike,
given
the rift between the officials in question and the union’s
membership and local leadership at Sasol.
The timing and duration
of the strike and its economic impact on the employer
[505]
It is well
established that the seriousness of unprotected strike action is not
diminished merely because the strike is of short
duration.
[18]
For example, in principle, there is a difference between a short
strike which occurred spontaneously in response to an act of
provocation by an employer and a strike of the same duration which
was planned in advance.
[506]
What was somewhat unusual about this industrial action was that the
action consisted of not surfacing
after
workers had completed
their shift. Nevertheless, in not surfacing, quite apart from defying
standard procedures, they knew they
would precipitate an untenable
situation for Sasol, by remaining underground in an environment in
which safety risks are constantly
sought to be minimized, even though
they had not withheld their labour. If they did not think management
would be very concerned
by their failure to surface, they would not
have used this tactic to gain management’s attention.
[507]
Once it became evident that every successive shift which reported for
duty was unlikely to surface, management knew that if
it allowed the
afternoon shift on 22 January to go underground, at the end of that
shift the number of persons simultaneously underground
would have
been somewhere between two and three times the normal number of
personnel underground (taking account of the fact that
one shift in
three would be a smaller maintenance shift). Consequently, the number
of people exposed to risk in the event of a
health and safety
incident was more than double the number who would normally have been
so exposed.
[508]
The only responsible measure Sasol could take at that stage was to
forfeit the production on the afternoon shift. Further,
because the
night-shift had never surfaced and would have been underground for
more than 24 hours by the time the night-shift of
22 January ended,
it would have been reckless of Sasol not to take measures to prevent
that shift undertaking further production,
with the risks attendant
on such workers resuming work without a proper rest interval.
However, merely because the decision not
to proceed with the
subsequent shifts was taken by management the loss of those shifts
was an unavoidable consequence of workers
remaining underground and
therefore a consequence of their industrial action. In this case, the
period during which no production
effectively took place began at the
end of the morning-shift on 22 January at approximately 17:00 and
could not have resumed for
at least another day.
[509]
Schneider estimated that the losses suffered by Sasol in consequence
of the strike amounted to approximately R 186 million.
It is true
that there is a possibility that if Sasol had sought the intervention
of LSC members before resorting to this court
to obtain an interdict
that the duration of the strike and consequently the losses suffered
as a result might have been reduced.
However, it cannot be said that
the strike began
because
of reckless or provocative conduct by
Sasol.
[510]
Nevertheless, leaving aside whether Sasol might have mitigated its
loss by dealing with the UPUSA leadership at Sasol, I am
not
persuaded that the sum of R 186 million can be entirely attributed to
the strike, as it was based also on a comparison of the
entire months
of January and February 2009 compared to other months of the year.
Schneider explained that it was typical that prior
to and after a
strike that production was below normal. However, there was no
evidence that before the strike management was complaining
about any
industrial action underground. Further, without comparative data of
those two months in other years it is difficult to
know if production
in January and February is typically similar to other months of the
year. In addition, it must be noted that
the suspension of all the
strikers would inevitably have been a major contributory factor to
low production in the subsequent weeks,
which cannot be attributed to
the strike itself but to the disciplinary steps taken by Sasol
thereafter. Be that as it may, I accept
that the loss of at least a
full day’s output over eleven shafts and need to source
alternative sources of coal was still
a very significant economic
imposition on Sasol despite the duration of the industrial action.
[511]
In the sense that the strike was not preceded by any notice of
commencement of the strike, nor by any conciliation process,

inevitably that would have affected forward planning, for example in
relation sourcing alternative coal supplies.  It stands
to
reason that, in the circumstances, Sasol had to make these
arrangements on short notice and accordingly the timing of the strike

was an aggravating factor. Had the strike been protected Sasol would
have had a minimum of two days to prepare for it and also
would have
been starting to prepare for such an eventuality once conciliation
had failed.
The impact of the strike
on safety
[512]
In summary, a major concern of Sasol during the sit-in was that
the sit-in compromised safety in the mines and that
the simultaneous
presence underground of the employees of different shifts exposed
more workers to the inherent risks of underground
coal mining
operation than would normally be the case when each shift clears the
shaft on completion. While the parties are largely
in agreement about
the major hazards of underground coal mining at Sasol’s mines,
the applicants contend that the sit-in
did not have grave safety
implications as contended for by Sasol.
[513]
A significant amount of evidence was led by both parties about the
various safety procedures and protocols applicable in Sasol’s

coal mines. Those have been dealt with above in setting out the
evidence. Certain features of that evidence stand out:
513.1
The risk posed by methane gas ignition, which could lead to an
explosion resulting in fatalities,
is a serious hazard in coal
mining.
513.2
The risk is not a hypothetical one, as evidenced by fatal explosions
at Middelbult in 1987 and
1993 and the fact that there had been three
methane ignitions per year from 2009 to 2013.
513.3
To minimize that risk, a number of safety measures had been adopted
by Sasol. These are designed
to: detect the presence of dangerous
concentrations of methane of 1.4 % and above; reduce the
concentration of methane using large-scale
ventilation systems and to
minimize the presence of coal dust, which magnifies and propagates
the explosion which a methane ignition
can trigger. In 1993 some of
the personnel killed in the explosion were working in other areas of
the mine and not in the production
section where it originated.
513.4
Although there is a degree of remote monitoring of methane levels
using Tri Flow sensors situated
in the mine, those meters measure the
volume and quality of air in the return airway in the last through
road of the mine but not
in the different production phases of the
mine.  To deal with this limitation, at the start of a shift a
supervisor and a
miner on the shift go to each phase or branch of the
ventilation system and test for methane with handheld devices.
513.5
Tri Flow meters will also not detect if a particular ventilation fan
stops working, which is
critical in preventing the build-up of
methane concentrations, nor will it detect a build-up of methane at
the coal face of a production
phase. The methane ignitions mentioned
above were contained within a smaller area because the ventilation
fans reduced the methane
concentration. Further, if a Tri Flow meter
at the control centre turns red, a manual inspection is still
necessary at the physical
location of that meter in the mine.
513.6
Production shifts require more regular monitoring (at three hourly
intervals) at each coal face
where methane is extruded as the coal is
cut and extracted, whereas in preparation shifts tests are done at
the beginning and end
of each shift.
513.7
Another risk in coal mining is the prospect of a rock fall caused by
an unsupported roof, which
can also cause a methane explosion. In a
situation where there is no mining activity or supervision of mined
areas for a period
of more than 24 hours there is an increased
likelihood of a roof being left unsupported for 48 hours. Although
there were some
disputes about whether a roof would be unsupported,
even accepting Gumede’s evidence that roof support work is done
by the
preparation shift, if there is no preparation shift after a
production shift, the roof will remain unsupported for longer than
normal. Jordaan’s evidence that at any one time in the mine
there would be at least one and possibly two mining phases with

unsupported roofs was not disputed. Gumede could also not say if roof
support work had been done in anticipation of the sit-in.
It is
reasonable to conclude therefore that there probably were certain
unsupported areas of the mines during the sit-in.
513.8
A further risk related to the risk of flooding if the seals on pumps,
which pump water out of
the mine, are not checked which is normally
done on a daily basis.
513.9
Actual safety conditions during the sit-in could not be properly
monitored at all the shafts.
At Bosjesspruit – Irenedale shaft
and Brandspruit no 2 shaft, safety teams were unable to check if
there was a build-up in
methane levels owing to the sit-in. At
Middelbult West shaft the fire patrol team that was sent down was not
allowed to surface
by the strikers and at Twistdraai Central and East
shafts safety patrols inspecting production areas were sent down
using the West
shaft because of concerns about their safety.  It
was also not possible at all shafts for management to determine if
all the
workers underground were in fact gathered at the shaft
bottom. At Middelbult main shaft, none of the night-shift workers
could
be found when supervisors descended to instruct them to leave,
which implies they were not in the comparatively safer environment
of
the shaft bottom.
513.10
It was
common cause that the shaft bottom area is the safest area
underground in a coal mine, relatively speaking.  Reasons
for
this are that the ventilation there is good because the main air
ventilation supply enters the mine by means of a fan at shaft
bottom.
Also, the mine roof is sprayed with a flame retardant and a
supportive coating which enhances fire safety and minimizes
the risk
of a rockfall in that area. The shaft bottom also does not qualify as
a hazardous area in terms of the Mine Health And
Safety Act.
[19]
However, despite the reduced degree of risks originating in that
area, workers gathered there still remained exposed to potential

risk, such as might be caused by a methane explosion.
Breach of statutory MHSA
and BCEA time limits
[514]
At the end of a shift, it is standard practice to conduct a
shaft clearance exercise to ensure that all the employees
who went
underground on that shift have been accounted for. This is done with
reference to the lamp room records.
[515]
Sasol’s
witnesses emphasized that workers could not stay underground for
longer than 12 hours except in the case of certain
statutory
exclusions provided for in Regulation 4.15 of the Minerals Act, which
permit workers to work more than one shift in a
24 hours period owing
to work arising from an accident or other emergency or to affect
repairs to equipment that cannot be delayed
without causing a serious
interruption of a mine’s operation.
[20]
[516]
Jordaan and Montgomery who testified on the standing operating
procedures insisted that, barring such exceptions, a shift
cannot
extend beyond 12 hours even in the case of a so-called
zama-zama
or
Ilima
shift. Counter-examples were cited by Gumede and
Tyokolo, though some of these could quite easily be classified as
falling within
the exceptional categories mentioned in the
regulation, such as accidents or machine breakdowns. They also
disputed Jordaan’s
claim that an
Ilima
shift never
extended beyond 12 hours.
[517]
Sasol also relied on the provisions of the BCEA. The provisions in
question are section 10(1A), which prevents an employee
working more
than 12 hours a day including overtime, and section 15(1)(a), which
requires an employer to give an employee a 12
hour rest interval
between ending and starting work. Strictly speaking, these provisions
found no direct application in the strike.
Sasol’s real
argument in relation to the proposition that workers on the sit-in
could have recommenced work when their next
shift began, was that
they had not in fact had a proper rest interval because they would
not have slept and also would not eaten.
That was probably true and,
in the interests of safety, militated against allowing such workers
to resume their duties when their
next shift was due to begin.
[518]
I believe that Sasol’s concerns about safety being compromised
by the sit-in have considerable merit. Although there
was no
comprehensive evidence about each shaft and whether safety procedures
were properly conducted, there clearly were at least
three instances
at different shafts where manual checks on safety were compromised.
Moreover, it is difficult to gainsay the points
made by Sasol that it
could not be confident that all the workers underground were in fact
gathered in the relative safety of the
shaft bottom, or that regular
safety checks were being conducted.
[519]
That
said, it is true that it seems for the most part that strikers were
congregated around the cage in the relatively safer
location of the
shaft bottom of the various shafts. It is also true, fortunately,
that none of the potential hazards inherent in
coal mining operations
manifested as actual hazards during the sit-in. Even so, it is a
misconception of the importance of safety
considerations to view the
period of the sit-in with the benefit of hindsight. Management’s
first concern was to get workers
to the surface primarily for safety
reasons. Sasol as the employer has a statutory duty to operate its
mines in such a way as to
ensure, as far as reasonably practicable,
that employees can perform their work without endangering their own
health and safety
or that of others.
[21]
Further, “(a)n employer is also obliged at common law to take
reasonable care of the health and safety of employees by providing

them with a reasonably safe system of work”.
[22]
[520]
Under normal operating conditions only one shift would be underground
at any one time, apart from a brief interval when shifts
overlap at
shift changes. Accordingly, the number of workers exposed to
underground risks, at any one time would normally be limited
to the
shift on duty. However, by mid-morning on 22 January, all but one
mine would have had two shifts underground simultaneously.
Further,
had management allowed the afternoon shift to go underground that
number would have swelled even more. The net effect
was that the
number of persons exposed to the inherent risks of the operations at
any one time was considerably magnified by the
sit-in and would have
been further increased if management had allowed the afternoon shift
to go underground. Had any serious accident
occurred, the number of
persons exposed to risk of injury would have been far greater than
normal. In the circumstances, Sasol
would have been seriously
derelict in its duties as an employer responsible for workplace
safety, to have simply allowed two shifts
of employees to remain
underground and for a third shift to join them.
Conduct of strikers
[521]
The conduct of most strikers concerning their heedless approach to
management’s attempts to serve ultimatums, or to
accept
management’s proposals that they should first surface and then
their grievances could be addressed has already been
dealt with
above.
[522]
The issue that remains to be dealt with is the extent to which the
strikers resorted to violence, threats of violence or other

intimidating conduct during the strike. There were instances of
violent conduct by strikers, but this was not a consistent feature
of
the strike at all shafts. It is also the case that certain individual
applicants were also dismissed specifically for such conduct
and not
only because they participated in the strike.
[523]
More common were instances of conduct of a more general ominous
nature, where the extent of the threat posed varied in intensity

according to the type of behaviour displayed. Thus, for instance, at
Middelbult Mine – iThembalethu shaft, Zwane decided
it would be
unwise to exit the cage when he went down sometime after 16:00 on 22
January to try and persuade workers to surface,
not because stones
and objects were thrown at the cage, but because when they descended
he heard workers saying they should not
exit the cage. Similarly, at
Middelbult West shaft, Duvenage became increasingly worried that
levels of tension were increasing
and found the stamping of roof
bolts on the shaft floor by strikers intimidating.
[524]
At other shafts such as Brandspruit Mine – Number 3E shaft,
management also perceived an escalation in tension as the
sit-in
progressed. Thus, on the second day of the sit-in, they did not judge
it safe to leave the cage but issued the ultimatum
whilst keeping the
outer mesh shaft door closed and, on ascending, heard objects being
thrown at the cage.
[525]
Although there was much controversy about the operation of the lift
doors, I am satisfied on the evidence that it was probable
that
workers underground were able to manipulate the handle on the outer
mesh shaft doors to the cage so that the cage would trip
causing it
to stop, until it could be overridden by a foreman on the surface. It
would also appear that in some cages it was possible
to see from the
control panels inside the cage the cause of the fault, but in others
that could only be determined from the control
panels on the surface.
What was not disputed is that the cages at certain mines had their
ascent retarded due to frequent tripping
of the safety mechanism. The
most probable explanation for this occurring during the sit-in was
that it was the result of interference
with the safety mechanism.
There was evidence that this occurred at Bosjesspruit Mine –
Main shaft and at Bosjesspruit Mine
– Irenedale shaft.
[526]
At Irenedale shaft there was also evidence that stones were thrown at
the cage before the inner door of the cage had closed.
This evidence
was disputed on the basis that there were no stones around the shaft
bottom, but Montgomery insisted that there were
because some of them
fragmented and fell inside the cage after striking the outer mesh
door. As in the case of Brandspruit no 2
shaft, some workers who
phoned the surface saying they wanted to leave the mine were advised
to leave via the incline shaft as
personnel who had gone down earlier
were reluctant to descend again. Two other workers were allowed to
leave the mine owing to
being on chronic medication and another to
attend a funeral. It was evident from the language used about these
individuals that
they had needed permission from the strikers to do
so, and it was only when senior management of the mine went
underground to fetch
them that they were allowed to leave.
[527]
Henderson testified that on leaving Middelbult – West shaft at
about 17:00 on 22 January, the black artisans in his
team were
prevented from surfacing with him. There was also hearsay evidence
that artisans who attempted to exit at the incline
shaft near
Middelbult main shaft were prevented from doing so. Henderson’s
evidence of tussles to prevent workers from entering
the cage who
wanted to surface and strikers using implements such as roof bolts to
try and prevent the cage doors from closing
was not contradicted by
any direct evidence to the contrary, apart from Matwa, who was
present during one of these episodes, but
said he was only focussed
on a sick worker who was taken to the surface and was not aware of
anybody else attempting to enter the
cage. The events that the West
shaft also had a knock-on effect because they led to management
deciding not to send anyone down
to serve further ultimatums on the
afternoon of 22 January.
[528]
At Brandspruit No 2 shaft, du Preez reported having sent the cage
down to collect workers who had phoned the surface to say
they were
being held against their will, but the cage returned empty. Only
salaried personnel such as shift bosses, foremen and
the like
surfaced. He also testified that he had advised workers who wanted to
leave to rather do so by walking to the incline
shaft. Gqadu did not
dispute that some artisans had surfaced this way. Clearly, given that
this entailed a walk of some kilometres,
it is unlikely that they
would have undertaken this if they could have easily left using the
cage at the number 2 shaft as usual.
Schuller also reported being
manhandled and prevented from entering the cage. On the evidence, it
is difficult to escape the conclusion
that those who wanted to leave
could not do so easily and that a degree of coercion was used to
prevent people surfacing, despite
Gqadu’s general denials to
the contrary.
[529]
There was no evidence of generalized intimidating conduct at
Brandspruit _ Main shaft or at Twistdraai – East shaft.
At
Twistdraai Mine – Central shaft, the only reported incident was
that when an ultimatum was served later in the day on
22 January,
workers shook the outer cage door, but there was no evidence of
objects being thrown at the cage as claimed at some
other shafts.
[530]
In summary, at the majority of the shafts there was evidence of a
degree of threatening behaviour, but this varied in levels
of
seriousness. In three shafts this resulted in some workers being
unable to leave the mine in the normal way by using the cage.
There
was also evidence of interference with the cage safety mechanism at
Bosjesspruit shafts and of objects being thrown at the
cage at
Bosjesspruit Mine – Irenedale shaft and Brandspruit 3E shaft.
The most serious incidents of physical manhandling
or result appeared
to have occurred at Middelbult West shaft, but on the evidence which
was led in the trial this was not characteristic
of the general
pattern of conduct at all shafts.
[531]
For the most part, the hostility that was directed at mine management
personnel took the form of drowning out the person attempting
to
deliver an ultimatum, by raising the level of singing and dancing. In
some instances, the reaction seemed more ominous because
workers were
brandishing steel roof bolts. The attempts to sabotage the operation
of the cages was also a form of threatening behaviour.
The mere fact
that there were no instances of actual assault on such occasions does
not mean that the environment was not threatening
to those who had
descended in the cage.
Consistency in
disciplinary sanctions for unprotected striking
[532]
Two types of inconsistent disciplinary treatment were raised by the
applicants, one being historical and the other contemporaneous.
- Contemporaneous
consistency
[533]
There was no evidence tendered by the applicants as to what
transpired at Sasol Coal Supply (SCS), even though they had pleaded

that workers at that facility had also participated in the sit-in.
According to the information received by Morodi, at the end
of their
shift at 14:00, workers at SCS started chanting and went to the
kitchen saying that they were going to wait for the managers
to
appear. However, the Manager of Engineering Services at SCS issued
them with an ultimatum to disperse, which they did within

approximately 30 minutes and boarded the buses at 14:45. They were
also issued with warnings and their conduct was treated as a
failure
to comply with an instruction rather than industrial action.
[534]
It was suggested to Morodi that their conduct was the same as the
workers who had participated in the sit-in and accordingly
the
workers engaged in the sit-in should have been treated as leniently.
Their treatment was also compared with the category three
and four
employees who had not participated in the sit-in but had refused to
leave the premises when they reported for work for
the afternoon
shift.
[535]
In respect of the comparison made with the workers who participated
in the sit-in underground, an obvious distinguishing feature
is that
the SCS workers occupied the kitchen premises very briefly and
dispersed shortly after being warned to do so. That conduct
is hardly
on a par with workers who turned a deaf ear to management’s
attempts to get them to surface for a day or more (depending
on which
shift they worked) and whose conduct disrupted normal operations and
raised safety risks.
[536]
In relation to the comparison with category 3 and 4 workers a
similar, but not identical, distinction can be drawn. Whereas
the SCS
workers essentially responded to a single instruction to disperse and
leave the premises, which they shortly after the
instruction was
issued, workers who remained on the surface of the various shafts
having been instructed to leave remained for
a prolonged period, some
of them only leaving the following morning.
[537]
That said, it is difficult to regard the conduct of the afternoon
shift workers who did not disperse after reporting for work
as being
on a par with their colleagues engaged in the sit-in. It is almost
certainly true this group of workers would have joined
the sit-in
after they completed their shift just as the previous shifts had
done. It is also true that they probably refused to
return home as a
show of solidarity with the workers engaged in a sit-in underground.
However, their conduct did not have the same
disruptive consequences
on the mining operations of Sasol as the sit-in by workers
underground. At most, those who did not disperse
and return home
after being told to do so might justifiably have been issued with
final warnings, but it is difficult to understand
how they could have
been dismissed for participating in the unprotected strike action.
-Historical consistency
[538]
The other case of alleged inconsistent treatment concerned the
comparison between the sanctions imposed on workers who had

participated in a four-day unprotected strike in 2006. The strike was
by UPUSA members and was related to a membership verification

exercise which was underway at the time. According to Tshikovhi’s
statement, workers who participated in that strike were
issued with
final written warnings, or were dismissed if they had a final written
warning for similar misconduct. The principal
reason why Sasol
distinguished those sanctions from the dismissals in this case was
that the strike activity did not take place
underground but was on
the surface. Consequently, it was still possible for to send
production teams underground and mine safety
was not compromised. At
least that is what Morodi testified.  Tshikovi, on the other
hand, believed that production had not
taken place during the 2006
strike. Sasol also argued, by contrast, that the 2009 strike was
marred by violence and intimidation
and threatening behaviour towards
management. Further, it was the result of a deliberate decision to
strike taken at a meeting
of UPUSA members and, as such, was
considered and orchestrated action by those applicants who
participated in it. There was no
evidence led on the last two factors
to compare the 2006 strike with the 2009 strike, though both factors
obviously are part of
the overall circumstances to be considered.
[539]
Insofar as comparisons can be made in relation to the first two
factors arising from the different sites of the two strikes
those are
not insignificant or trivial considerations. To the extent that the
disparity in sanctions might not be justified, it
something that will
be considered below as the parity issue is a component of substantive
fairness to be weighed with other factors.
Summary of substantive
fairness
[540]
Without detracting from the more detailed reasoning above, the
factors bearing on substantive fairness may be summarised below.
[541]
Firstly, the workers in categories 3 to 5 did not participate in the
sit-in, even if it had been their intention to do so.
It is true that
many did not heed the instructions to disperse once their shift was
cancelled. However, their presence on the surface
caused no
demonstrable hindrance to Sasol nor posed any safety risk. There was
no evidence they were even picketing in support
of those underground.
Any disciplinary action taken against them should not have been for
participating in the strike and it was
plainly unfair they were
dismissed on that ground. That is not to say their insubordinate
conduct warranted no sanction but it
did not warrant dismissal for
participation in an unprotected strike.
[542]
As far as the night and morning-shift workers who did participate in
the sit-in are concerned, the following factors are pertinent
in
determining the substantive fairness of their dismissals
542.1
The strike was not provoked by Sasol’s conduct in so far as it
related to the wage gap
adjustment increase and the annual service
increment that was actually due to the applicants. Even though the
suspension of the
LSC was a major reason for the strike against the
backdrop of discontent over the wage gap process, Sasol was entitled
to suspend
them. Though it is arguable that Mabuyakhulu’s
suspension was ill-considered, it cannot confidently be said the
strike probably
would not have occurred if he alone had not been
suspended. In any event this was never argued or pleaded by the
applicants.
542.2
The strike was not spontaneous but was planned and decided upon in a
mass meeting.
542.3
Whether or not the applicants sought advice from their recognised
leaders before embarking on
the strike, it was reckless to embark on
it without considering if it was protected knowing that management
was cautioning them
against embarking on unprotected industrial
action.
542.4
Other than the dispute declaration by Mabuyakhulu, no attempt was
made to follow the recognition
agreement procedures or the statutory
procedures to resolve the dispute before resorting to strike action.
This was a serious contravention
of the LRA procedures.
542.5
To the extent that the strike was about implementing the wage gap
agreement as purportedly agreed
to by management, then the applicants
should have invoked contractual remedies or, at least, invoked the
procedures for striking
where an employer unilaterally alters
conditions of service and refuses to reinstate the agreed conditions
under section 64(4)
of the LRA. If the dispute was about a
disagreement over an unresolved issue of when the wage gap process
would be completed, then
they should have utilised the procedures for
bargaining followed by a procedural strike if that failed.
542.6
Even though the intention of the strikers was not to interrupt
production, the strike threatened
to compromise mine safety
procedures and exposed more workers than necessary to the inherent
risks of coal mining. It was not disputed
that if a lapse in safety
measures had caused an incident such as a methane ignition which
propagated and became an explosion,
there was no guarantee it would
not have affected workers at the shaft bottom even if that is a
relatively safe place. In order
not to compound the risk management
had little choice but to prevent the afternoon shift from going
underground and to stop production
being resumed by shifts whose
members had spent a whole day underground with little rest.
542.7
The consequence of management having to take that step was that a
day’s production was
lost at eleven shafts. Even if the loss
sustained was only the loss resulting directly from those shifts not
being worked that
was still significant and caused Sasol economic
harm.
542.8
The duration of the sit-in was not simply an hour or two but lasted
close to 24 hours in the
case of the afternoon shift and closer to 36
hours in the case of the night shift.
542.9
During the sit-in management’s attempts to serve ultimatums
were either stifled or ignored.
Workers made it clear they were not
going to respond positively to mine management and were not
interested in budging until senior
management and, or alternatively,
LSC members came and spoke to them and their concerns about the wage
gap moneys and the suspension
of the LSC members were addressed. On
the other hand, they did not defy the court interdict when it was
conveyed and their leaders
encouraged them to surface.
542.10
Generally, only more senior employees who wanted to leave at the end
of a shift were allowed to do so. In some
cases, they had to leave
via the incline shafts. Other employees were only able to surface for
medical reasons or special personal
circumstances such as attending a
funeral. There was also evidence of intimidating conduct towards
management though it was mainly
at Middelbult – iThembalethu
shaft, Middelbult West shaft and Brandspruit no 3 shaft where the
threatening behaviour became
more overt.
542.11
It must also be noted that a number of individuals were also
dismissed for alleged acts of violence, intimidation
or harassment
apart from participating in the strike so Sasol did differentiate to
some extent between those who only were part
of the sit-in and those
accused of being responsible for the such misconduct, rather than
holding all responsible for that conduct.
Nonetheless, it does not
mean that if such conduct is a prevalent characteristic of a strike
that cannot have a bearing on determining
the substantive fairness of
dismissals or a bearing on the relief where the dismissals are
nonetheless substantively unfair.
542.12
For its part, Sasol did attempt to issue ultimatums and was not
unreasonable in refusing to engage with workers’
concerns while
they remained underground. However, it made no attempt to engage with
the leaders it had already recognised and
been dealing with as the
authentic representatives of the UPUSA membership at Sasol and whom
it knew offered the best chance of
curtailing the strike. It must
also be remembered that the LSC members were formally recognised
under the recognition agreement
as representatives. This was not a
situation in which management was expected to deal with hitherto
unrecognised or unelected leaders.
Sasol’s conduct in
approaching the union officials, whom it knew had no standing
whatsoever in the eyes of UPUSA membership,
whilst not making any
attempt to contact the LSC members to intervene cannot be viewed as a
bona fide
attempt to end the strike quickly. If Sasol took the
strike as seriously as it claimed this omission is inexplicable.
542.13
Unlike the 2006 unprotected strike, all the applicants who were
found guilty of participating in it were
dismissed irrespective of
whether they had a previous final warning or not. Although the 2006
strike did not impact on mine safety,
it was a conventional strike in
which the participants refused to work for four days, unlike this one
in which the participants
worked their shifts but interfered with the
mines’ operations causing Sasol to have to halt production. The
disparity of
treatment of strikers in that strike compared to this
one cannot be simply brushed aside, when the 2006 strike entailed a
complete
withdrawal of labour and was four times as long as the 2009
strike.
542.14
In my view, to the extent that the conduct of the applicants who were
only dismissed for participating in the
strike is concerned, their
dismissals are notably at odds with Sasol’s more indulgent
treatment of unprotected strikers in
2006 considering the nature and
duration of both strikes. I accept that the participation of the
applicants in this strike was
serious misconduct but taking account
its nature, duration, the strikers prompt response to the call by
their leaders to end the
strike when the interdict was obtained, and
the failure of Sasol to make any attempt to engage those leaders to
end it, I am not
persuaded that the dismissal of the night-shift and
morning-shift workers for participation in the strike was an
appropriate sanction
and therefore substantively fair. To the extent
that their conduct was nonetheless far from blameless that is best
dealt with when
deciding the relief they should get.
Procedural fairness
[543]
There are normally two legs to the enquiry into procedural fairness
in unprotected strike dismissals. 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,
and 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 was taken. The courts’ approach to the
two requirements was usefully
summarised in
National Union of
Metalworkers of SA & others v Lectropower (Pty) Ltd
:
“
While at one stage the
issuing of a fair ultimatum was considered to be sufficient to
satisfy the requirement of procedural fairness
in a strike related
dismissal, some 15 years ago,  in Modise & others v Steve's
Spar Blackheath
2001 (2) SA 406
(LAC); (2000) 21 ILJ 519 (LAC);
[2000] 5 BLLR 496
(LAC), the Labour Appeal Court placed a
construction on item 6(2) of the code that requires an employer to
provide workers who
participate in an unprotected strike with both an
ultimatum as well as a right to be heard before any dismissal is
effected. The
court stated that the hearing may be of a collective
nature and that its form and formality would largely be dictated by
the context.
This reading of the code was discussed and applied in
NUM & others v Billard Contractors CC & another (2006) 27 ILJ
1686
(LC);
[2006] BLLR 1191
(LC), where this court held that the
purpose of an ultimatum is to provide a cooling-off period before a
final decision to dismiss
is taken, and that there is a discrete
right to be heard after the ultimatum has expired. The court was not
specific on the nature,
form and extent of this right but it is clear
from that decision that an employer cannot simply issue an ultimatum
and thereafter,
without more, effect a dismissal. These decisions
were recently affirmed by the LAC in the CBI judgment…”
[23]
[544]
In this case, the applicants make the following claims of procedural
unfairness relating the disciplinary inquiries and the
bona fides
of Sasol in following disciplinary procedures The applicants also
made additional submissions about the alleged unfairness of the

ultimatums which are addressed at the end of this section.
[545]
Insofar as the disciplinary inquiries and the
bona fides
of
Sasol in convening the inquiries is concerned, the applicants claim
that:
545.1
Sasol had decided on the disciplinary action it intended to take
against the applicants in the
morning of 22 January, rendering their
dismissal a
fait accompli
and presumably, by implication, that
the ultimatums and disciplinary hearings were a sham;
545.2
the chairpersons of the inquiries were not impartial and imposed
sanctions of dismissal when
it was inappropriate to do so, and
545.3
Sasol did not comply with the requirements of the recognition
agreement relating to part-time
stewards because they were not
afforded the opportunity to be represented by the UPUSA union
officials.
[546]
The applicants’ heads of argument provided more particularity
only in respect of some of these claims.
[547]
The first claim appears to relate to the internal memorandum
circulated to mine managers and HR business partners in which
they
were encouraged to keep a record of everyone involved in their strike
action, to prepare warning letters and setting up a
disciplinary
process and to issue strikers with an ultimatum to surface within an
hour, whereafter they would be issued with final
warnings or
alternatively be subject to a disciplinary process which could lead
to dismissal if they were already on final written
warnings.
[548]
I agree that it might have appeared at that early stage that there
was a clear progression of how matters should unfold in
Mkhize’s
view, though this memorandum was not as emphatically predictive as
the one reporting on the suspension of LSC members.
It certainly
conveyed an intention that final warnings should be imposed for first
offenders, which was in keeping with how Sasol
had handled the longer
strike in 2006, but nevertheless it left the outcome of a dismissal
hearing to be a matter determined at
an enquiry.
[549]
In any event, management at mine level never got further than issuing
ultimatums, except in the case of SCS, which was exceptional
for a
number of reasons. The disciplinary process only unfolded much later
in the disciplinary inquiries, by which stage it was
clear that any
ultimatums which had been issued had been ignored and the action had
endured until the end of the morning-shift
more than a day later.
While the internal memorandum was indicative of a narrow focus in
addressing the strike by emphasising formal
steps to be taken, in
view of the way dismissals subsequently did take place, it does not
follow in my view that the circular was
tantamount to a
fait
accompli
which determined that the decision of the disciplinary
inquiry chairpersons was a foregone conclusion.
[550]
The second claim concerns the extent to which the external
chairpersons and prosecuting representatives were truly independent.

I agree that the fact that the external appointees played different
roles in different inquiries and attended an induction session
prior
to the commencement of the inquiries, might have raised some
reasonable doubt about whether they would be truly independent
in the
performance of their duties. However, it has to be remembered that
under normal circumstances the inquiries and presentation
of the
company’s case at each inquiry would have been conducted by
Sasol employees in terms of Sasol’s disciplinary
procedures.
Morodi had testified that Sasol had decided to appoint external
representatives because of the practical difficulties
of Sasol staff
having to conduct such a large number of separate inquiries, which
numbered approximately one hundred in all.
[551]
There is no reason to suppose, as a matter of principle, that the
internal chairpersons would have been more independent than

externally appointed ones. On the contrary, usually the opposite
assumption is made because the externally appointed chairpersons,

particularly in the case of legal professionals, should also act in
accordance with their professional ethics to conduct impartial

proceedings and are not employees of the client. Although the
appointment of external chairpersons was a departure from the code,

that alone would not have rendered the inquiries unfair. It is trite
law that a departure from a disciplinary code, though possibly

indicative of procedural unfairness, will only be found to be
procedurally unfair where it results in demonstrable or obvious
prejudice.
[552]
However, there were allegations that certain chairpersons had
expressly indicated that their job was merely to dismiss applicants.

Such claims were made by Molise and Hokwana in their evidence. Apart
from the fact that these allegations are not borne out by
handwritten
minutes of those inquiries, it is striking that no evidence was
advanced that such blatant statements of bias were
raised on appeal,
if indeed they had been made. It seems more likely that Molise’s
revised version of his evidence in which
he accepted that the
chairperson said she was not there ‘to make out a case for
employees’ is what was actually said
by her, though the meaning
of the statement might have been misunderstood. Quite apart from
that, it would be quite extraordinary
for a legally trained
chairperson in those circumstances to make such a declaration. In the
circumstances, I am not inclined to
accept that such statements of
patent bias were probably made.
[553]
On the issue of shop stewards not being represented by union
officials, this was not something set out in any detail in the

applicants’ argument. On the evidence, the only persons
identified as shop stewards amongst the applicants were Bhembe and

Matwa. Matwa was represented by one Mapeya at his enquiry. Insofar as
a challenge was raised in the inquiry about the issue of

representation in both their inquiries it was about the question of
legal representation on account of the company having a legal

representative as a complainant. Moreover, the objection was raised
in relation to the representation of employees in general and
not
with specific reference to their status as shop stewards. There was
no evidence of either Bhembe or Matwa specifically asking
for
representation by a union official. Though there was no evidence of
this issue being raised at the inquiries or on appeal,
it is not
disputed that shop stewards were not represented by union officials.
Procedural
unfairness relating to the ultimatums
[554]
In part,
the basis of the applicants’ claim of procedural unfairness
concerning the issuing of ultimatums draws on Grogan
J’s
identification of important features to be considered in evaluating
the fairness of the ultimatums, namely developments
prior to the
issuing of the ultimatum, the terms of the ultimatum and, the time
allowed for compliance.
[24]
Secondly, the applicants point out that some categories of employee
never received ultimatums.
[555]
In essence, the thrust of the applicants’ complaint which they
articulate relates mainly to the developments prior to
the ultimatums
being issued. They take no issue with the terms of the ultimatums or
the time allowed for compliance. Their attack
is more broadly
concerned with whether the ultimatums were meaningful in the context
they were issued.  The applicants argue
that management knew in
advance full well which issues were fuelling employee discontent.
Despite that, management focused on a
strategy to discipline the
applicants rather than to attempt to address the causes of their
concern, even when workers mentioned
issues such as their unhappiness
with the wage gap monies, the suspension of LSC members or demanded
to speak to LSC leadership
and, or alternatively, senior management.
In communicating with the applicants only through ultimatums and
preferring to communicate
with the Evander and Johannesburg offices
of UPUSA while deliberately avoiding engagement with the LSC and
Mabuyakhulu, Sasol did
not make a
bona fide
attempt to engage
with the applicants. In truth, this point really has more to do with
Sasol’s overall approach in trying
to bring the strike to an
end rather than with the ultimatums themselves. I have already dealt
with the shortcomings of Sasol’s
attempt to get UPUSA officials
to intervene and its failure to engage the LSC.
[556]
As to whether Sasol should have engaged with workers concerns as
suggested, there are a number of difficulties with this argument.

Firstly, there is no obligation on an employer faced with an
unprotected strike to engage with the demands of the strikers. To

impose such an obligation would be to legitimate the unprotected
strike as an acceptable avenue for coercing consultation and
ultimately negotiation and would also undermine the rationale for
using the statutory procedure which promotes engagement and dialogue

before resorting to economic coercion.
[557]
Secondly, the initial message to workers participating in the sit-in
was that management
would
listen to their concerns, but only
if they ended their sit-in and surfaced. This was not acceptable to
the workers because they
obviously wanted to engage with management
only if they could simultaneously maintain pressure on Sasol.
Thirdly, it was plainly
going to be wholly impractical for the senior
management to simultaneously deal with workers underground in ten
shafts and it was
disingenuous of the strikers to have expected Sasol
to deal with them shaft by shaft when the issues were plainly ones
that needed
to be addressed in a central forum because the issues
affected workers in all shafts the same way.
[558]
The second issue relating to the ultimatums is that some
employees engaged in the sit-in did not have ultimatums served
on
them. It is common cause that the morning-shift workers at all shafts
and would not have been present when the ultimatums were
issued to
the night shift. Nevertheless, it was only in the case of Middelbult
shafts that morning-shift workers were not served
with any ultimatums during the course of the sit-in. Sasol argues
that it could
not have been expected of management in the
circumstances prevailing at those shafts for further attempts to
serve ultimatums to
be made.
[559]
At Middelbult-iThembalethu shaft, where two
ultimatums had already been issued, the reason for Zwane not serving
the ultimatum after
16h00 was that he heard workers saying the
management group should not leave the cage. It is possible another
manager might have
decided, despite hearing this, to issue the
warning, but the court should be wary of adopting an armchair
approach in assessing
whether a reasonable manager, in Zwane’s
position, ought to have kept the cage at the shaft bottom long enough
to attempt
to address workers through the cage doors in order to
deliver the ultimatum. The court cannot impose a requirement that an
attempt
to serve an ultimatum must be made irrespective of reasonable
perceptions of the risks involved.
[560]
At Middelbult West shaft, two ultimatums were served by 13:00 on 22
January, but thereafter the interpreter was reluctant
to return
underground again owing to the tensions experienced underground on
the last occasion. Degenaar also cited the atmosphere
on the second
occasion as being the reason they did not leave written ultimatums on
the floor of the shaft bottom before surfacing.
In the early hours of
23 January an attempt to collect someone who wanted to surface was
abandoned because a group of strikers
prevented the cage doors from
being opened. Henderson experienced similar conduct the next day when
he went to fetch members of
his team and which led to a violent
tussle between workers trying to surface and others trying to keep
them underground.
[561]
At Middelbult Main shaft, the night-shift workers were not found
anywhere in the vicinity of the shaft bottom. Supervisors
were sent
down twice to serve ultimatums printed in English and Zulu but
reported the members of the night-shift were not present
at the shaft
bottom on either occasion. Though this was hearsay evidence, there
was no evidence tendered to the contrary by any
members of the
night-shift to support the pleaded version that they remained
underground and nobody came to address them until
16:00 on 22
January, nor was any evidence tendered to gainsay Tshivashe’s
evidence that they were warned before starting
the night-shift not to
participate in the sit-in.  Though some of the morning-shift
workers did surface, others did not, but
Tshivashe decided it was
unsafe to serve any ultimatums after hearing of incidents at other
mines, so no ultimatums were served
on the morning-shift.
[562]
On the evidence, I am satisfied that it was not unreasonable of
management at Middelbult West and iThembalethu shafts to have
decided
that discretion was the better part of valour and not to take risks
in the prevailing circumstances by attempting to serve
an ultimatum.
There was less justification for never having sent anyone down to
serve an ultimatum on the morning-shift at Middelbult
Main shaft
considering that the night-shift workers had not gathered at the
shaft bottom to the best of management’s knowledge
and that
there was no untoward conduct taking place at that shaft.
[563]
However, in light of the earlier analysis, the likelihood of
morning-shift workers being any more receptive to respond positively

to ultimatums if they had been issued with them, was probably very
slight. It is also improbable they would not have been informed
by
the night-shift workers about management’s previous attempts to
serve ultimatums given that they would have met the night-shift

workers underground when they joined the sit-in.
[564]
Be that as it may, there was less justification at some shafts why no
attempt was made to serve an ultimatum on morning-shift
workers to
give them the same opportunity as others to consider whether to heed
the threat of possible dismissal or to take the
chance it would not
eventuate. On the evidence this was true of Middelbult Main shaft and
Bosjesspruit Main shaft.
Conclusion on procedural
unfairness
[565]
In light of the analysis above, I am not persuaded that the enquiries
conducted by external chairpersons and prosecuting officers

(complainants) were inherently any more tainted by bias than
enquiries conducted by Sasol employees would have been. In terms of

the requirements of an opportunity to be heard before dismissal in
the case of unprotected strikes, the applicants did have an

opportunity to dispute or explain their participation in the strike
and to make submissions why they should not be dismissed.
[566]
Sasol did attempt to ensure that ultimatums were served and for the
most part did what could be expected in the circumstances
which
varied from shaft to shaft. If workers choose to drown out managers
trying to issue ultimatums or otherwise seek to prevent
ultimatums
being served, they cannot rely on management’s lack of success
under those circumstances to argue that they did
not have an
opportunity to consider and reflect on the ultimatums that could not
be effectively served because of their own conduct.
That said, there
ought to have been attempts made to serve ultimatums on the
morning-shift workers at Middelbult Main shaft and
Bosjesspruit Main
shaft and the failure to do so there entailed some procedural
unfairness. The significance of that must also
be weighed against the
lack of any evidence from applicants on those shifts that they would
have heeded the ultimatums if they
had received them and would have
surfaced before the rest of the strikers who only surfaced on
receiving news of the interdict
and the advice of LSC members.
[567]
Overall, I am satisfied that there was no material procedural
prejudice suffered by the applicants in the events leading to
their
dismissals.
Identification of
Applicants
[568]
The parties could not agree on which basis the individual applicants
should be identified, even after much prodding from the
court. Their
respective positions on this issue are summarized below.
[569] The only issue the
parties could agree on was that individuals whose names did not
appear on the list of workers accompanying
the referral of the
disputes to the CCMA, could not be applicants in the referral to this
court. On the face of it, the CCMA list
contained the names of 941
persons. It also appears to be common cause that the number of
employees actually dismissed arising
from the sit-in was 666. Clearly
the CCMA list either entailed a considerable degree of duplication,
or included names of persons
who were not among those dismissed
arising from the sit-in. That list is attached to the judgment as
Annexure “J3”.
[570]
Using this list as a starting point, the parties compiled their own
respective spreadsheets in which they identified those
persons they
believed were legitimate parties to the Labour Court referral.
Despite directives from the court to reconcile the
discrepancies
between the lists, the parties’ legal representatives have been
unable to do this. The applicants came up with
a list of 609
applicants, whereas the respondent identified only 547 applicants.
Accordingly, there is still a significant discrepancy
regarding 62
names, assuming that all of the 547 persons identified by the
respondent are amongst those listed by the applicants.
In the absence
of an agreement on whether persons who appear in the applicants’
list but do not appear in the respondent’s
list should be
considered parties to the Labour Court referral it will be necessary
to take account of this unresolved issue in
the order made. Why the
parties could not have already resolved this between themselves is
inexplicable.
[571]
The only
point of principle I can discern between the parties as to the
correct identification concerns a submission by the applicants
that
persons who were dismissed arising from the strike, but were not
included in the CCMA list of applicants, ought nonetheless
to be
included as applicants. I am satisfied that it is now settled law
that before the labour court can entertain a dismissal
dispute
reporting within its jurisdiction the dispute must have been referred
to conciliation and that to be a party to a Labour
Court referral,
that party must also have been a party to the conciliation.
[25]
Accordingly, to the extent that the applicants have included the
names of persons who were not a party to the CCMA referral, those

individuals cannot be employee parties in this case.
Relief
[572]
On the lists of applicants submitted by their attorneys, a number of
them opted only to claim compensation.
[573]
Having found the dismissal of applicants to be substantively unfair,
the court is obliged in terms of section 193 [1] [a]
of the LRA to
order reinstatement of those applicants, in the absence of any of the
factors set out in section 193 [2] being present.
In this matter, it
is only where the applicants have not sought reinstatement that
compensation should be payable. Where the applicants
have indicated
their preference for reinstatement the question arises to what extent
an order of reinstatement should be retrospective.
[574]
In
Kroukam
v SA Airlink (Pty) Ltd
[26]
the majority of the Labour Appeal Court expressed the view that
re-instatement or re-employment may be ordered retrospectively
to the
date of dismissal, even if that period exceeds 12 months, in the case
of substantively unfair dismissal, or 24 months, in
the case of
automatically unfair dismissal. “In summary”, the court
held, “the wording of section 193(1)(a) supports
appellant’s
contention that the court has a discretion in respect of the
retrospectivity of a re-instatement award. In exercising
this
discretion, a court can address inter alia the time period between
the dismissal and the trial. The court can accordingly
ensure that an
employer is not unjustly financially burdened if re-instatement is
ordered.”
[27]
[575]
In this matter there was an unusually long delay before the trial
could commence. As mentioned previously it was only when
the court
intervened to assist the applicant’s in obtaining legal aid,
that the matter was able to proceed. The trial itself
was plagued by
delays caused
inter alia
by factors such as: the difficulty of
the applicants’ attorneys obtaining instructions from a group
of applicants, who were
no longer conveniently situated near the
workplace; the need to obtain specific instructions on events at each
of the 10 shafts;
the difficulty in finding appropriate court venues
to accommodate the large number of applicants attending court, and
the availability
of representatives. While it is not suggested that
the applicants were to blame for the delays in galvanizing the trial
proceedings,
it would not be equitable to unduly burden Sasol with an
order of extensively retrospective reinstatement.
[576]
In relation to the specific categories of workers who were dismissed
for participation in strike action, in my view an appropriate

gradation of retrospective reinstatement is the following:
576.1
Category 4 and 5 employees, who did not opt for compensation, are
entitled to retrospective
reinstatement for a period of two years. In
respect of cage drivers (category 5), who remained on duty they
should not have been
disciplined, let alone dismissed. Mehlomakhulu
is an exception to that group as the evidence shows he eventually
joined the strikers.
Consequently, he falls to be considered in the
same category as workers who participated in the sit-in.
576.2
Category 3 employees, who did not of for compensation, are entitled
to retrospective reinstatement
for a period of two years, and to be
issued with a final written warning for disobeying a lawful
instruction.
576.3
Category 1 and 2 employees, who did not opt for compensation, are
entitled to retrospective
reinstatement for a period of one year, and
must be issued with a final written warning for participating in
unprotected strike
action. There is no reason in my mind to
distinguish between afternoon and morning-shift workers based solely
on the number of
ultimatums they received. None of the applicants’
witnesses testified that if they had been issued with ultimatums they
would
have heeded the call. It is also meaningless to distinguish
them on the basis that some commenced their sit-in earlier than
others.
There was nothing to suggest that the day shift workers only
intended to stay underground for 24 hours.  It was simply
fortuitous
that they worked a later shift than the night-shift
workers. However long the strike continued they would always have
been underground
for a shorter period than the night-shift unless the
night-shift surfaced before them. The day shift workers surfaced for
the same
reason as others: because they received word from the LSC
members, after the interdict was obtained, that they should call off
the sit-in. It was this which caused them to end their participation
in the sit-in, not because they decided 24 hours underground
was
enough.
[577]
Owing to the ceiling on compensation for unfair dismissal of 12
months’ remuneration, it is more difficult to apply
an
appropriate differentiated scale. Accordingly, all the applicants who
opted to ask for compensation should be paid 12 months’

remuneration.
Costs
[578]
The applicants’ attorneys, were paid by the Legal Aid Board,
which would have incurred a significant financial burden
in funding
such extensive litigation conducted by a team of lawyers. To all
intents and purposes there cannot be much semblance
of an ongoing
relationship between the applicants and Sasol in the circumstances
where that relationship as being in a state of
dissolution for
several years. Accordingly, in the circumstances, I believe it would
be fair and equitable for Sasol to pay the
legal aid Board its costs
in funding the litigation on the ordinary party and party scale.
Order
[1]
In so far as applicants were dismissed for their participation in
unprotected strike action,
their dismissals were substantively unfair
but procedurally fair.
[2]
Subject to the provisos in paragraphs 3, 4 and 5 of this order, the
respondent must:
2.1
reinstate Category 4 and 5 applicants, who appear on the applicants’
spreadsheet attached
hereto as Annexure “J1” to have
requested reinstatement, with retrospective effect to a date two
years prior to their
reinstatement, provided their names also appear
on the respondent’s spreadsheet, attached hereto as Annexure
“J2”;
2.2
reinstate Category 3 applicants, who appear on Annexure “J1”
to have requested reinstatement,
with retrospective effect for a
period of two years, and must issue them with a final written warning
for disobeying a lawful instruction,
provided their names also appear
on Annexure ”J2”;
2.3
reinstate Category 1 and 2 applicants, who appear on Annexure “J1
to have requested reinstatement,
with retrospective effect for a
period of one year, and must issue them with a final written warning
for participating in unprotected
strike action provided their names
also appear in Annexure “J2”, and
2.4
must pay all other applicants who sought relief in the form of
compensation so indicated in Annexure
“J1”, an amount of
twelve months’ remuneration, provided their names also appear
in Annexure “J2”.
[3]
All applicants who are entitled to retrospective reinstatement in
terms of the order above,
must tender their services within 45
calendar days of the date of this order.
[4]
Payment of compensation to those applicants entitled to such payment
in terms of paragraph
2.4 above, must be made within 30 calendar days
of the date of this order.
[5]
Notwithstanding paragraphs 2, 3 and 4 above, any applicant, whose
name appears on both Annexure
“J1” and “J2”
and who was also dismissed for a reason other than their
participation in the unprotected
strike action, may refer their
alleged unfair dismissal for such other reasons to the CCMA within 30
days of the date of this judgment
for arbitration. In the event a
CCMA arbitrator finds that any such applicant’s dismissal was
substantively unfair for such
other reasons, that applicant shall be
entitled to the relevant relief set out in paragraph 2 of this order,
save that the time
periods in paragraph 3 and 4 for giving effect to
that relief shall run from the date the applicant receives the
arbitrator’s
award. In the event an arbitrator finds that an
applicant’s dismissal for a reason other than their
participation in the
unprotected strike was substantively fair, that
applicant is not entitled to any relief in paragraph 2 of this order,
but will,
if the arbitrator finds their dismissal for another reason
was procedurally unfair, be entitled to such compensation as the
arbitrator
might determine for procedural unfairness.
[6]
In respect of all other applicants, whose names do not appear on both
Annexures “J1”
and “J2” hereto, the parties
must meet by no later than 25 September 2019 to attempt to reach
agreement on whether
they are applicants or not, subject to the
proviso that to be eligible for consideration as a potential
applicant the person’s
name must appear on Annexure “J3”.
[7]
The parties must file a further list of additional applicants on
whose identity they agree
upon, by 7 October 2019. Additional
applicants identified as a result of the process in paragraph 6 must
be reinstated retrospectively
or paid compensation in accordance to
the relief ordered in paragraph 2 above, save that the payment of
compensation or tender
of service must be made by 25 October 2019 and
19 November 2019 respectively.
[8]
In respect of applicants whose names appear on the list compiled in
terms of paragraph 7,
who were also dismissed for a reason other than
participation in the unprotected strike action, they may refer their
alleged unfair
dismissal for such other reasons to the CCMA within 30
days of the date the parties finalize the list. The remaining
provisions
of paragraph 5 shall apply
mutatis mutandis
(i.e.
with the necessary changes) in respect of such applicants.
[9]
In the event the parties are unable to agree by 7 October 2019
whether certain persons appearing
on Annexure “J1”
qualify as applicants in this matter, either party may on application
refer such a dispute back to
court for determination. If the court is
seized with such an application, the determination, in respect of the
applicants referred
to in this paragraph, of the relevant dates for
reinstatement, payment of compensation, referral of dismissal for
other reasons
to the CCMA, as set out in paragraphs 3, 4 and 5 of
this order, shall be made by that court.
[10]
In the case of any applicant who passed away on or after 5 August
2009, being the date of the referral of
the dispute to the Labour
Court, the respondent must pay compensation to the applicant’s
deceased estate in accordance with
paragraph 2 of this order,
provided they were not also dismissed for reasons other than
participating in the unprotected strike,
within 30 calendar days of
receiving written particulars of the executor of their deceased
estate and confirmation of the executor’s
appointment.
[11]
The respondent must pay the applicants’ costs.
_______________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Adv. N S Mteto instructed by BM Kolisi Inc. and Mr. M Kolisi, N
Motshegare of BM Kolisi Inc.
RESPONDENT:
W La Grange, SC and P Kirstein instructed by Cliffe Dekker Hofmeyr
Inc.
[1]
See:
Commission
for Conciliation, Mediation and Arbitration v Registrar of the
Labour Relations and Others
;
(2010) 31 ILJ 2886 (LC) at para [6].
[2]
Act
29 of 1996.
[3]
Act
50 of 1991.
[4]
(Regulation 4.15 added by Regulation 6 of Government Notice R305 in
Government Gazette 3397, dated 1 March 1972); (Regulation
4.15
amended by Regulation 26(h) of Government Notice R3083 in Government
Gazette 13684,,dated 20 December 1991)
[5]
Section 15(1)(a) of the BCEA
[6]
Malgas’s statement was put to Degenaar but Malgas never
testified.
[7]
Viz: “You are hereby given an ultimatum to come to the surface
from underground by 15:00 hours.  If you do not come
out from
underground, disciplinary action will be taken as follows: You will
be suspended pending disciplinary action that may
lead to dismissal
in line with the Sasol Disciplinary code.”
[8]
Schedule 8 to the LRA.
[9]
Transport
& Allied Workers Union of SA on behalf of Ngedle & others v
Unitrans Fuel & Chemical (Pty) Ltd
(2016) 37
ILJ
2485 (CC) at 2501
[10]
(2014) 35
ILJ
642 (LAC).
[11]
At 651-2.
[12]
S 188(2) states:
“
Any
person considering whether or not the reason for dismissal is a fair
reason or whether or not the dismissal was effected in
accordance
with a fair procedure must take into account any relevant code of
good practice issued in terms of this Act”
[13]
Palluci
Home Depot (Pty) Ltd v Herskowitz & others
(2015) 36
ILJ
1511 (LAC)
at
1523, para [22].
[14]
For a discussion of the respective economic weapons at the disposal
of both collective bargaining parties see, e.g,
Putco
(Pty) Ltd v Transport & Allied Workers Union of SA on behalf of
Members & another
(2015) 36
ILJ
2048
(LAC)
at 2058-9, at [32] – [34] and following.
[15]
See also in this regard
SA
Clothing & Textile Workers Union & others v Berg River
Textiles - A Division of Seardel Group Trading (Pty) Ltd
(2012) 33
ILJ
972
(LC) at 979-980:
[27]
As with any dismissal for misconduct, the court ultimately needs to
determine whether the relationship has irretrievably
broken down and
whether a less severe form of discipline ought to have been utilized
by the employer, dismissal being the ultimate
and most severe
sanction available. At the same time, the court will take into
account that the LRA prescribes a relatively simple
procedure to
render strike action protected; the failure of a trade union and
its
members
to make use of this procedure removes the protection with which they
could have clothed themselves and opens them up to
the sanction of
dismissal, especially if the employer had issued an ultimatum making
the consequences of their actions clear.
[16]
See
Hendor
Steel Supplies (A Division of Argent Steel Group (Pty) Ltd formerly
named Marschalk Beleggings (Pty) Ltd) v National Union
of
Metalworkers of SA & others
(2009)
30
ILJ
2376 (LAC) :
“
[8]
Mr Redding correctly conceded that an unprotected strike did not
automatically justify dismissal as the only appropriate sanction.

Dismissal is manifestly the sanction of the last resort. W G Davey
(Pty) Ltd v National Union of Metalworkers of SA
1999 (3) SA 697
(SCA); (1999) 20 ILJ 2017 (SCA) para 18. Hence there is a need to
examine the arguments of both parties as to the manner and
conduct
of the strike to test whether dismissal was proportional to the
misconduct.”
[17]
SA
Commercial Catering & Allied Workers Union on behalf of Mokebe &
others v Pick ’n Pay Retailers
(2018) 39
ILJ
201
(LAC ) at 213.
[18]
SA
Commercial Catering & Allied Workers Union on behalf of Mokebe &
others v Pick ’n Pay Retailers
(2018) 39 ILJ 201 (LAC) at 213, par [36]
[19]
MHSA Regulation 2(g) of General Notice 160 in Government Gazette
13002, dated 1 February 1991 contains the following provision:
(11A)
“hazardous area” means –
(i)
in respect of a coal-mine –
(aa)
a return airway; or
(bb)
an area within 180 metres of any working face; or
(ii)
any area in or at a mine or at a works in addition to an area
referred to in regulation 1 (11A) (i)
where
there may be a risk of igniting gas, dust, vapour or any other
explosive material;
[20]
Viz:
4.15
No employee shall work, or be caused or permitted to work, two or
more shifts at any mine
during
any continuous period of 24 hours: Provided that this restriction
shall not apply –
(a)
to work necessitated by accident or other emergency; or
(b)
to such repair work to equipment or such service as cannot be
delayed without
causing
serious interruption to the operation of the mine; or
(c)
to a shiftworker when he changes over shift times or where the
shiftworker for the
succeeding
shift fails to arrive and a replacement is not immediately
available; or
(d)
in other cases of necessity permitted by the Principal Inspector of
Mines and
specified
in writing to the manager of the mine.
(Regulation
4.15 added by Regulation 6 of Government Notice R305 in Government
Gazette 3397, dated 1 March 1972) (Regulation 4.15
amended by
Regulation 26(h) of Government Notice R3083 in Government Gazette
13684,dated 20 December 1991.
[21]
Section2(1)(b) of the
Mine Health and Safety Act 29 of 1996
.
[22]
See
National
Union of Mineworkers & others v Impala Platinum Ltd &
another
(2017) 38
ILJ
1370
(LC) at 1373, par [10], cited with approval in
Association
of Mineworkers & Construction Union & others v Northam
Platinum Ltd
(2018) 39
ILJ
2692
(LC) at 2713, par [45]
[23]
(2014) 35
ILJ
3205 (LC) at 3213, par [25].
[24]
Grogan J, Workplace Law, Eleventh Edition page 471
[25]
National
Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and
others
[2015] 3 BLLR 205
(CC) at 214-218, paras [26] – [40].
[26]
[2005] 12 BLLR 1172 (LAC)
[27]
At 1232, para [61].