THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
REPORTABLE
Case no : C 313 / 21
In the matter between:
GOLDEN ARROW BUS SERVICES (PTY) LTD First Applicant
SIBANYE BUS SERVICES (PTY) LTD Second Applicant
and
THE SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL First Respondent
I MACUN N.O. Second Respondent
S GODFREY N.O. Third Respondent
TRANSPORT AND OMNIBUS WORKERS UNION Fourth Respondent
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA Fifth Respondent
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION Sixth Respondent
UNITED ASSOCIATION OF SOUTH AFRICA Seventh Respondent
NON UNIONISED EMPLOYEES LISTED IN
ANNEXURE “A” Eighth Respondent
AND: -
Case no : C 688 / 21
In the matter between:
GOLDEN ARROW BUS SERVICES (PTY) LTD Applicant
and
THE SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL First Respondent
EBRAHIEM PATELLA N.O. Second Respondent
CRAIG BOSCH N.O. Third Respondent
GERHARD WESSELS N.O. Fourth Respondent
TRANSPORT AND OMNIBUS WORKERS UNION Fifth Respondent
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA Sixth Respondent
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION Seventh Respondent
UNITED ASSOCIATION OF SOUTH AFRICA Eighth Respondent
NON UNIONISED EMPLOYEES LISTED IN
ANNEXURE “A” Ninth Respondent
AND: -
Case no : C 93 / 22
In the matter between:
GOLDEN ARROW BUS SERVICES (PTY) LTD First Applicant
SIBANYE BUS SERVICES (PTY) LTD Second Applicant
and
THE SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL First Respondent
JOYCE NKOPANE N.O. Second Respondent
TRANSPORT AND OMNIBUS WORKERS UNION Third Respondent
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA Fourth Respondent
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION Fifth Respondent
UNITED ASSOCIATION OF SOUTH AFRICA Sixth Respondent
NON UNIONISED EMPLOYEES LISTED IN
ANNEXURE “A” Seventh Respondent
AND: -
Case no : C 684 / 22
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA First Applicant
TRANSPORT AND OMNIBUS WORKERS UNION Second Applicant
and
THE SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL First Respondent
R DE WET N.O. Second Respondent
GOLDEN ARROW BUS SERVICES (PTY) LTD Third Respondent
SIBANYE BUS SERVICES (PTY) LTD Fourth Respondent
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION Fifth Respondent
UNITED ASSOCIATION OF SOUTH AFRICA Sixth Respondent
NON UNIONISED EMPLOYEES LISTED IN
ANNEXURE “A” Seventh Respondent
Heard : 23 to 25 October 2024
Delivered : 9 April 2025
This judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time for hand -down is
deemed to be 9 April 2025
Summary: Review application – bargaining council exemptions decisions – s
158(1)(g) of LRA applicable – review test considered – reasonableness and / or
legality review applicabl e – material error of law considered – review test
determined and applied
Bargaining Council – exemption procedure – purpose of exemption
considered – exemption integral part of sectoral level collective bargaining –
exemption cannot be seen to undermine colle ctive bargaining if proper case
for exemption exists – exemption procedure in bargaining council considered
Exemption – factors justifying exemption considered – no requirement that
there must be financial hardship – exemption justified in special
circumstances – circumstances that constitute special circumstances
considered – exemption may be proactively sought to ensure future viability of
employer
Exemption – wage disparity considered – substantial wage disparity may
justify exemption – circumstances and effect of wage disparity considered –
unfortunate consequence of sectoral collective bargaining in particular
circumstances – exemption needed to remedy anomaly
Exemption – unfair competition – meaning of unfair competition considered –
when wage disparity would constitute unfair competition considered –
remedying unfair competition may constitute basis for exemption
Exemption – special circumstances – facts showi ng special circumstances
applicable to employer – wage disparity rendering employer unable to fairly
compete to retain business in particular market – new competitors would pay
minimum wage – wage costs substantial part of operating costs – wage costs
cannot be addressed without exemption – attenuated exemption sought
designed to reduce disparity over time – without exemption future viability of
business at stake – exemption justified and fair
Bargaining Coun cil – exemption proceedings – findings by appeal exemption
authorities refusing exemption considered – findings constitute unreasonable
outcome ; material error of law; misconstruing case and facts – findings
unreasonably and irregularly negating pertinent facts – appeal decisions
reviewed and set aside
Review application – remedy considered – s 145(4) of LRA considered –
principles relating to substitution of decisions considered and applied –
decisions by appeal authorities refusing exemption substituted with decision
that exemptions granted
Review application – trade union parties applying to review decision by appeal
authority to grant exemption – no case for review made out – conclusion by
appea l authority rational; reasonable; supported by facts – review application
by trade unions dismissed
Costs – principles considered – no order as to costs justified and fair
JUDGMENT
SNYMAN , AJ
Introduction
[1] This judgment concerns the latest instalment in the Golden Arrow Bus
exemption saga,1 and considering what has gone before, I am pretty sure it is
unlikely to be the last. But nonetheless, and in the interest of achieving finality
in such an important issue, in order to at least restore some semblance of
certainty in the road passenger transport industry , I will provide a detailed
judgment, which hopefully will convince the parties to at last live with the
outcome. What has been happening until now is clearly contrary to the
following dictum in Food and Allied Workers Union on behalf of Gaoshubelwe
v Pieman’s Pantry (Pty) Ltd2:
‘Our courts have, on occasion, pronounced on the importance of labour
disputes to be conducted with expedition. For example, in National
Research Foundation the Labour Court held: ‘[15] It is now trite that
1 See Golden Arrow Bus Services (Pty) Ltd v SA Road Passenger Bargaining Council and Others
(2019) 40 ILJ 2343 (LC) ; Golden Arrow Bus Services (Pty) Ltd v SA Road Passenger Bargaining
Council and Others (2021) 42 ILJ 1446 (LAC) ; Golden Arrow Bus Services (Pty) Ltd v SA Road
Passenger Bargaining Council and Others (unreported), per Prinsloo J dated 17 October 2019 under
case number C 351 / 19.
2 (2018) 39 ILJ 1213 (CC) at para 187.
there exists a particular requirement of expeditio n where it comes to the
prosecution of employment law disputes. …’
[2] The above being said, what is before Court to decide, in the aforesaid cases,
is nothing short of four individual review applications . All these review
applications relate to decisions mad e at the South African Road Passenger
Bargaining Council (SARPBC) , concerning exemption applications . In th ree of
the applications , the decision sought to be reviewed is a decision refusing
exemption from certain provisions of the main collective agreement (s) of the
SARPBC , whilst in the last review application , what is sought to be reviewed
is a decision granting such exemption .
[3] All four review applications have been brought in terms of Section 158(1)( g) of
the Labour Relations Act3 (LRA) . The entire record in this mat ter is extensive ,
spanning thousands of pages, and it will be impossible for me to reflect, in this
judgment, everything possible raised by the parties as contained in such
record. I will therefore only reflect what I believe are the salient and critical
facts and considerations necessary to decide the review applications . The
parties are however assured that everything as contained in the record was
considered. The parties also filed subst antial heads of argument, which I
found to be of welcome assistance in deciding this case , or better put, cases.
In the end, all parties were satisfied that all four review applications were
properly before Court and prosecuted to finality, with no prelimi nary issues to
be considered.
[4] Because of the multiplicity of the parties, in different capacities and citations, I
shall refer to parties by name in this judgment, for ease of reference and
certainty . In this respect, I will refer to Golden Arrow Bus Services and
Sibanye Bus Services jointly as ‘ GABS ’.4 As to the only trade parties
participating in the review application, being National Union of Metalworkers
of South Africa and Transport and Omnibus Workers Union , I wi ll refer to
3 Act 66 of 1995 (as amended) .
4 I am aware that Sibanye Bus Services is not a party to case number C 688 / 21.
these parties as ‘ NUMSA ’ and ‘ TOWU ’ respectively. The South African Road
Passenger Bargaining Council will be referred to as the ‘ SARPBC ’. And lastly,
where I refer to the various individual panellists in the exemption applications ,
I will refe r to them by name, as cited.
[5] I will now commence this judgment by first setting out, in so far as possible in
chronological sequence, the relevant background facts. I say this, because as
a result of intervening litigation, what was initially the first exemption
application decided , in fact became a later exemption decided, in the
chronology. What did however become apparent from the entire record in this
matter is that the facts presented in support of and in opposition to the various
exemption ap plications remained more or less the same throughout.
The relevant background
[6] GABS is an employer carrying on business in the road passenger transport
industry, w hich industry resorts under the scope and jurisdiction of the
SARPBC , a bargaining council duly established and registered under the
LRA. In the SARPBC , the wages and conditions of employment of employees
that are employed by employers in the industry are determined by way of a
sectoral collective bargaining followed by a sectoral main collective
agreement, which agreement not only binds the parties to the SARPBC, but is
also extended to non -parties in the industry in terms of section 32 of the LRA.
[7] In the past, and until recently , GABS was an actual party to the SARPBC , but
that is no longer the case, as GABS has resigned from COBEO , the
employers’ organi sation that is the employer party to the SARPBC . Currently,
GABS is subject to the main collective agreements of the SARPBC by virtue
of the extension of such agr eements in terms of section 32 of the LRA .
[8] GABS’s core business is providing public transport to members of the public,
under contract with government institutions, and in particular , the Western
Cape Province ( the Province ) and the City of Cape Town (the City ). It has
been doing so since 1995 . In the past, GABS did not r eally have competition
in this market place , and as such, even though it paid its employees
significantly higher tha n other bus operators , and in excess of what provided
for in the SARPBC main collective agreement s as minimum wages , it could
still operate successfully and profitably , as it was able to a large extent to
pass on those costs to its customers . In short, and in the absence of
competition in the particular market where GABS had its core business ,
higher wages did not matter.
[9] But this initial monopoly, for the want of a better description, started changing
in 2017 . Whilst it would ordinarily be true that to allow for competition would
obviously be a good thing , in the case of GABS it ha d an unfortunate
consequence. At a level of principle , as discussed below, emerging
competition would mean that the emerging competitors would be able to
tender / negotiate for business with the Province and / or the City , at what can
be described as entry level rates in terms of the SARPBC main collective
agreements f rom time to time. Thus, these competitors can tender / negotiate
based on minimum wage. As opposed to this, GABS would be required to pay
actual prescribed wag es. When these minimum wages are compared to the
prescribed wage rates paid by GABS , GABS would simply not be able to
compete, and thus its entire business in this particular market would be at
risk. Ironically, it is principally because of th e historical monopoly GABS had,
that it now faced with this predicament , which is certainly ironic .
[10] To put matters in context, GABS indicated that by the time the 2018 main
collective agreement was concluded in the SARPBC, the application of this
agreement would result in GABS drivers receiving a 32% increase after one
years ’ service, and that, after six years’ service, such drivers would be earning
50% more than the SARPBC minimum rate. Added to this, 53% of the
operating costs of GABS was made up of these wages.
[11] The c hange in circumstance came about as a result of the adoption of the
policy intention of Government to introduce competition into the process of
contracting commuter bus services such as those provided by GABS. In
fact, the public transport sector attracted the attention of the Competition
Commission, which carried out an inquiry under section 43B of the
Competition Act.5 This enquiry led to two provisional reports , one of which
dealt with inter alia bus transport services. The report was critical of the fact
that contracts with bus companies such as GABS, which were intended to be
interim in nature , was in existence for more than two decades, and had in fact
led to a monopoly. The following recommendation was recorded in the report :
‘The perpetual extension on subsidised bus contracts without going on
tender inhibits competition. Where contracts are put on tender.
Government (provincial transport departments or the DOT) should
consider breaking some of the contracts into smaller contracts in order
to create opportunities for new entrants and smaller bus operators
should be given preference given the incumbency advantages enjoyed
by the existing large bus operators …
While the subsidy policy is being developed and in order to ensure
stability especially in the commuter bus industry, the current contracts
should only be extended on a short -term basis. Given the time frame
required to finalise the subsidy policy, to support and empower small
bus operators in the interim. the subsidy policy should:
Prescribe the conclusion of negotiated contracts (as opposed to
tendered contracts) with small bus operators in all the provinces. The
negotiated contracts awarded to small bus operators should account for
a minimum of 30 per cent of all contracts and progressively increase
over time ... ’
[12] What will follow from these envisaged Governmental interventions is that
tender / negotiation processes will be undertaken for subsidised bus commuter
contracts with national and provincial transport authorities and that pending
this, only short -term extensions of current subsidised contracts (such as the
contract that GABS has with the Province) will be permitted . Simultaneously,
an increasing portion of negotiated / tendered contracts will be awarded to
5 Act 89 of 1998.
small bus operators . In the end, there is no longer any guarantee of GABS
retaining any remaining portion of the contracts not specifically envisaged for
small bus operators , which business it would stand to lose as well .
[13] The contract that GABS currently has with the Province is an interim contract,
terminable at any time on notice by the Province , without cause, whenever
the Province deems this expedient . This could be a complete termination of
the contract or breaking up th e contract to provide for greater competition.
GABS mention ed the example where a comparable contract between the
Eastern Cap e Province and the Algoa Bus Company was terminated on 3
months' notice in June 2021.
[14] In addition to the changes at provincial level, there are also significant
changes at the City level. The City operates its transport system in terms of an
Integrated Transport Plan (ITP) . The City's Bus Rapid Transport System
(BRT) forms an integral part of the ITP. The roll -out of the City's BRT network,
MyCiti, would mean that the existing commuter bus arrangements between
the Province and GABS for such area effectively fall away , and this would
then be replaced by the new MyCiti service. This in turn means that GABS
would have to contract directly with the City, and the City has ma de it clear
that it will only contract on the basis of labour costs at the prevailing SARPBC
minimum wage rates. MyCiti Phase 1 is already operational , and this has led
to GABS being required to give up operating on some routes that were
allocated to other smaller service providers, such as Kidrogen and
Transpeninsula , and these two operators can only recover labour costs from
the City at SARPBC minimum rates .
[15] Any replacement contracts or awarded contacts under the MyCiti service ,
going forward , will allocated on the basis of either open tender or negotiated
contract . In this context, the problem GABS has is that it has very limited
scope to secure these contract s on the basis of other competitive
differentiators , because its costs to provide the service is made up of 53% in
labour costs and 25% in fixed fuel costs. Thus, in order to competitive, GABS
will have to submit bids that are based on SARPBC minimum rates , the same
as the new competitors .
[16] However, t he most significant threat to GABS' s future business operations lies
in the roll-out of MyCiti Phase 2A. This phase will cover the areas of the South -
Eastern Metro towards the City , which is GABS's core operational area , where
the bulk of its current services are rendered. Full implementation of Phase 2A
is expected in 2027, however partial implementation is expected to start
sooner. As with Phase 1, the City will enter into negotiations for Phase 2A
contracts with GABS and other new competitors intending to provid e services in
the affected area s. When deciding to which service provider the contact will
be awarded , it is obvious that the proposed cost of the service will be a major
consideration, if not the most important consideration, and the City will most
likely award greater market share to service providers with lower costs . And
added to this difficulty is the imperative of favouring new competitors as
market entrants.
[17] There was another consideration that further compounded the difficulties
GABS is facing. This is that the new competitors will not start out having to
supply their o wn busses. I n terms of the City's MYFIN Plan's Priority
Parameter, the City will initially supply and own the bus fleet. With fleet and
infrastructure costs borne by the City, and fuel costs (about 25% of the total
operating costs) being fixed, the wage differential is even more material where
it comes to being able to fairly compete .
[18] As touched on above, and in this environment, the ability of GABS to fairly
compete in securing contracts would be substantially compromised, as it is
simply unable to do anything about its ever-increasing wage costs , which
comprises more than half of its total operating costs, whilst the new
competitors start of f with minimum wage, and subsidised infrastructural costs,
so to speak. Consequently , the competitors would be able to substantially
undercut GABS in this contract tender / negotiation process es.
[19] Any contracts with the Province , going forward, will face similar obstacles.
First, there is the likely 30% allocation to new market entrants that would
apply, putting this part of the business of GABS already at risk . It follows that
it is imperative for GABS to do what it can to at le ast remain competitive for
the remaining 70% of the marke t, which remaining share is not even
guaranteed business for GABS. Once again, and for the same reason as
would be applicable to the City, the cost of the service would be a major
factor, and it is likely that future contracts for business would go to the service
provider who tenders at the lowest cost. The wage rates of GABS would then
render it similarly uncompetitive .
[20] Accordingly , and as matters stood when the SARPBC concluded and then
extended it s 2018 main collective agreement, GABS was encumbered by
excessively high wage rates , as opposed to any new competitor, which would
render it uncompetitive to tender / negotiate for business. As a result of the
change in circumstance , discussed above, GABS was simply not assured /
guaranteed of retaining any business going forward. It was now entirely
exposed to an open marker tender / negotiation process, which would more
likely than not , inevitably go to the lowest bidder. According to GABS, this
constituted unfair wage competition which posed an existential threat to the
continued viability of its business. This necessitated GABS to take steps to
address the wage disparity, which would only worsen going forward , if not
addressed immediately .
[21] It was not possible, nor would it make any sense, for GABS to wait until
having to submit a tender or a negotiation is opened , and then seek to
address the wage disparity. By then it would be far too late. GABS thus
contemplated immediate and proactive intervention, to at least give it a
fighting chance in any tenders / negotiations coming up , which was not in the
distant future , but in the foreseeable future. Nonetheless , GABS did not
contemplate a wage freeze or wage reduction of the wages of its employees.
Instead, it contemplated a solution that would gradually reduce the wage
disparity, by, in simple terms, obtaining limited exemptions from prescribed
current wage increases.
[22] This envisaged solution then br ought the exemption process under the
SARPBC main agreement s into play. It was common cause that GABS then
sought exemption , the precise terms of which will be addressed later in this
judgment, from the 2018 main collective agreement ( the 2018 agreement ), the
2020 main collective agreement ( the 2020 agreement ), the 2021 main
collective agreement ( the 2021 agreement ), and finally the 2022 main
collective agreement ( the 2022 agreement ). This was done by way of four
individual exemption applications made to the SARPBC in terms of the
SARPBC exemption procedure. In terms of clause 13 of the SARPBC
exemption procedure, the following criter ia is prescribed for assessing an
exemption application:
‘In considering an application, the exemption authority shall take into
consideration all relevant factors which may include, but shall not be
limited to, the following criteria :
13.1 The applicant's past record (if applicable) of compliance with
the provisions of the Council's Collective Agreements and/or
exemption certificates.
13.2 Any special circumstances that exist or any precedent that
might be set.
13.3 The interests of the industry in relation to unfair competition,
centralized collective bargaining as well as the economic
stability of the industry.
13.4 The interests of employees as regards exploitation, job
preservation, sound conditions of employment, possible
financial benefits, health and safety as well as the infringement
of basic rights.
13.5 The interests of the employer as regards its financial stability,
the impact on productivity, its future relationship with
employees and recognized Trade Union(s), ope rational
requirements and the viability of the employer 's business. ’
[23] GABS applied for exemption from the 2018 agreement on 20 June 2018. It
came before an exemption panel consisting of Eleanor Hambridge and Triq
Jamodien , and in a finding on 12 August 2018, the panel accepted that an
untenable wage disparity had arisen over time as a result of the effect of the
successive main agreements , however the panel decided that this anomaly
could only be addressed through collective bar gaining and not exemption. On
31 August 2018, GABS appealed this decision in terms of the exemption
appeals procedure, however this appeal was dismissed on 9 October 2018 ,
without considering the merits, because the appeal panel held that it was not
within its powers to grant the relief sought by GABS. This culminated in a
review application to the Labour Court, which came before Nie uwoudt AJ on 1
March 2019. In a written judgment handed down on 2 April 2019, the learned
Judge reviewed and set aside the ruling of the appeal panel, and remitted the
matter back to the SARPBC for consideration de novo before a newly
constituted appeal panel.
[24] The remitted appeal then came before Pat Stone as appeal panellist . In a
ruling dated 13 May 2019, this panellist once again dismissed the appeal.
This time, the reason for refusing the appeal was that exemption was only
appropriate in the case of ‘undue financial hardship ’ or where the employer is
financially unable to comply with the main collective agreement. According to
the panellist , there was no evidence that GABS was fina ncially unable to
comply with the 2018 agreement, and as such, the appeal had to fail.
Needless to say, another review to the Labour Court followed , which on this
occasion came before Prinsloo J on 30 August 2019. In a judgment handed
down on 1 7 October 2019, the learned Judge reviewed and set aside the
appeal ruling , on the basis that the panellist misconceived of the true nature of
the enquiry and had consequently failed to apply his mind to the merits of the
exemption appeal . The leaned Judge was crucial of the finding that the
enquiry could only be confined to a ‘ financial hardship ’ issue.
[25] In the review application before Prinsloo J, and in the event that its review
application was successful on the merits, GABS had sought relief of
substitution , in that it prayed that the Court should substitute its own decision
for the decision of panellis t Stone in the appeal proceedings. The learned
Judge was not inclined to grant this relief, and instead on ce again remitted the
appeal back to the SARPBC for consideration de novo before a newly
constituted appeal panel. GABS was not satisfied with this state of affairs, and
on 7 November 2019 sought leave to appeal to the Labour Appeal Court , only
in respect of the learned Judge declining to substi tute the appeal finding, and
instead remitted the appeal back to the SARPBC for determination de novo .
Leave to appeal was granted on 20 June 2020 , and GABS proceeded to
prosecute the appeal. Simultaneously , NUMSA and TOWU noted a cross
appeal against the decision by Prinsloo J to review and set aside the appeal
finding in the first place.
[26] In the interim , and p rior to the deciding of the appeal by the Labour Appeal
Court , the issue of exemption from the 2020 agreement came up , following
the conclusion and then extension of such agr eement. GABS applied for
exemption on 26 May 2020 , which application came before panellists
Goldman and Fenn, which appeal was refused on 1 March 20 21. This refusal
resulted in an appeal by GABS on 17 March 2021 in terms of the appeals
procedure , and this appeal came before Godfrey and Macun as appeal
panellists . In a ruling dated 30 April 2021, these panellists refused the appeal.
The reasons for the refusal, in short, were that n egotiations in bargaining
councils are confined to setting minimum conditions of employment, as
opposed to actual wages and conditions of employment , and that
impermissible undercutting can only relate to undercutting by paying below
the prescribed minimum wage rate. The panellist s also believed there w ere no
special circumstances justifying exemption. GABS has challenged this appeal
finding on review to the Labour Court, by way of a review application filed on
14 June 2021, which is one of the review applications I have to decide, being
the review application under case number C 313 / 2021.
[27] On 15 May 2021, the Labour Appeal Court handed down judgment in the
appeal and cross appeal against the judgment of Prinsloo J. Both appeals
were dismissed. There were however some critical fin dings made by the
Labour Appeal Court in this judgment, which I shall refer to later. The upsh ot
of the judgment of the Labour Appeal Court was however that the refusal of
the exemption appeal in respect of the 2018 agreement was yet again
remitted back to the SARPBC for determination de novo before a newly
constituted appeals panel.
[28] Before the exemption appeal in respect of the 2018 agreement was decided
de novo in the SARPBC , the 2021 agreement was concluded and then
exten ded, resulting in another exemption application by GABS brought on 28
July 2021 . The exemption application came before panellist Du Plessis and
was refused on 11 October 2021. An appeal by GABS against this decision
followed on 16 October 2021, which came before Nkopane as appeal
panellist . In a ruling dated 20 January 2022, this panellist refused the appeal.
However, and on this occasion, the appeal panel list did accept the application
of the wage parity principle as a relevant consideration when deciding an
exemption application , and that the application of this principle in casu
showed that GABS would be materially inhibited in competing with new
entrants in to the market. The reason for the refusal, in short, was that GABS
had not shown that this competitive disadvantage would apply to all
competitors , and thus there was not a sufficient basis grant exemption. Of
differently put, the appeal panel list believed that it is only when the City would
engage with service providers to provide a service, that proper competitors
and issues of co mpetition can be established , and an exemption in advance,
so to speak, was not appropriate. GABS challenged this appeal finding on
review to the Labour Court, by way of a review application filed on 2 March
2022, under case number C 93 / 22, being another one of the review
applications I have to decide .
[29] Returning to the exemption appeal in respect of the 2018 agreement, this
came before Patelia, Bosch and Wessels as appeal panellists . In a ruling
given on 16 October 2021, the appeal was refused for the third time. The
reasons given for this refusal were that the consideration preventing wage
undercutting was only limited to non-parties to the collective agreement
paying wages below the minimum wages and had nothing to do with wage
parity. Effectively , the appeal panel decided that wage parity was not a
relevant c onsideration. In addition, the appeals panel considered that the
issue of exemptions was not there to assist competitors by levelling the
playing field, and that, in essence , unfair competition was not a relevant
consideration. The panel concluded that it would set a poor precedent to grant
exemption to GABS, which is profitable and well -resource d, just so that it
could retain market share. This refusal resulted in a review application filed
with this Court on 26 November 2021 under case number C 688 / 21, which is
also one of the review applications I am called on to decide.
[30] The saga does not end there. The conclusion of the 2022 agreement and its
extension followed, resulting in another exemption application by GABS
brought on 4 August 2022. This exemption application came before De Wet
as panellist , and this time GABS was successful. In a ruling dated 19
November 2022, De Wet granted the exemption. Basically, it was granted on
the basis that the panellist accepted the application of the wage parity
principle, and that in this case , due to historical context and the fact that its
wage structure rendered GABS unable to fairly compete , this principle had the
result that GABS’s business was at risk, which just ified the exemption asked
for. On this occasion, it was NUMSA and TOWU that sought intervention f rom
the Labour Court, b y way of a review application filed 18 January 2023 under
case number C 684 / 22, which is the final review application I have to decide .
Review Principles
[31] Despite contrary views that had earlier been expressed,6 it is now settled that
this Court is entitled, in terms of Section 158(1)( g) of the LRA, to review
decisions made by exemption bodies of bargaining councils established under
the LRA.7 In terms of section 158(1)(g), the Labour Court has the power to
review the purported performance of any function provided for in the LRA on
any grounds that are permissible in law . In Golden Arrow Bus Services (Pty)
Ltd v SA Road Passenger Bargaining Council and Others8 (Golden Arrow
LAC), the Labour Appeal Court held:
‘… the grant of an exemption from the collective agreement concluded
by the members of a bargaining council must be taken to constitute the
performance of a function provided for in the LRA. That a functionary is
required to perform the role of deciding whether an exemption should
be granted is manifestly a performance conducted under the LRA and
accordingly it must therefore follow that, in terms of s 158(1) (g) of the
LRA, the Labour Court has jurisdiction to determine the legality of such
a mandated procedure …’
[32] An earlier judgment of the Labour Court in Golden Arrow Bus Services (Pty)
Ltd v SA Road Passenger Bargaining Council and Others9 (Golden Arrow
LC), which was unrelated to the judgment of the Labour Appeal Court referred
to above, had adopted a similar approach. The Court relied on Trafford
Trading (Pty) Ltd v National Bargaining Council for the Leather Industry of SA
and Others10 where the Labour Appeal Court decided as fo llows:
‘… The application to review the decision of the second respondent
was brought in terms of sec. 158(1)(g) read together with sec
32(3)(e)(i) of the Act. Sec 158(1)(g) provides that the labour court may
6 See National Union of Metalworkers of SA v Metal and Engineering Industries Bargaining Council
and Others (2019) 40 ILJ 399 (LC).
7 Putco (Pty) Ltd v SA Road Passenger Bargaining Council and Others (2019) 40 ILJ 2389 (LC) at
paras 17 – 18.
8 (2021) 42 ILJ 1446 (LAC) at para 17.
9 (2019) 40 ILJ 2343 (LC) at para 11.
10 (DA11/09) [2011] ZALAC 35 (1 January 2011) at para 23.
review the performance or purported performanc e of any function
provided for in the Act on any grounds that are permissible in law. In
this case the second respondent when considering the application
referred to it was performing a function under sec. 32(3)(e)(i) of the Act.
…’
[33] What is then the review test that would apply to these kinds of review
applications under section 158(1)(g) of the LRA ? One view would be that the
test is one of reasonableness , as established in Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others.11 This was the approach adopted
in Trafford Trading supra where the Court held that:12 ‘…the test for reviewing
an award or decision of a tribunal such as the second respondent is as
provided in Sidumo and another v Rustenburg Platinum Mines Ltd and Other
namely whether the decision taken by the tribunal is a decision that a
reasonable decision maker could not reach …’. Similarly, and in Putco (Pty)
Ltd v SA Road Passenger Bargaining Council and Others13 the Court
articulated the test as thus:
‘In short: this court has jurisdiction in terms of s 158(1) (g) to
review decisions by exemption authorities relating to decisions to grant
or refuse exemption from binding collective agreements concluded
under the auspices of bargaining councils. The threshold to be applied
is one of reasonableness, in the sense contemplated by Sidumo &
another v Rustenburg Platinum Mines Ltd & others …’
[34] The review test contemplated by Sidumo supra is trite. I t involves a
determination whether the decision is : ‘… one that a reasonable decision -
maker could not reach? ...’14. This means that the award in question is tested
11 (2007) 28 ILJ 2405 (CC).
12 Id at para 23.
13 (2019) 40 ILJ 2389 (LC) at para 18. See also Subaru Pretoria (Pty) Ltd v Motor Industry Bargaining
Council and Others (2014) 35 ILJ 1080 (LC) at para 27.
14 Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at
para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC) at para 96.
against all the facts to ascertain if it meets the requirement of
reasonableness.15 In conduc ting this test it is necessary for the Court to
enquire into and consider the merits of the matter and the entire evidence on
record in deciding what is reasonable.16 It would only be if consideration of the
evidence and issues before the arbitrator shows that the outcome arrived at
by the arbitrator cannot be sustained on any grounds, and the irregularity,
failure or error concerned is the only basis to sustain the outcome the
arbitrator arrived at, that the review application would succeed.17 In addition ,
where an error of law is committed , and such error is material, it would render
the decision a rrived at to be unreasonable, and thus subject to being reviewed
and set aside.18 The Court in Herbert v Head of Education: Western Cape
Education Department and Others19 articulated the following apposite
summary:
‘In MacDonald’s Transport it was found that the LRA did not
contemplate that a CCMA or bargaining council arbitrator, both
statutory roles, would have the last word on the proper interpre tation of
an instrument as this would mean that a patently wrong interpretation
would be left intact, which ‘would be absurd’. The wrong interpretation
of an instrument by an arbitrator could therefore constitute a reviewable
irregularity as envisaged by s 145 of the LRA, in the sense that a
reasonable arbitrator does not get a legal point wrong. The court
concluded that either ‘the reasonableness test is appropriate to both
value judgments and legal interpretations. If not, “correctness” as a
15 See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.
16 See Herholdt v Nedbank Ltd and Another (2013) 34 ILJ 2795 (SCA) at para 25 ; Gold Fields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and
Others (2014) 35 ILJ 943 (LAC) at para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394
(LAC) at para 59.
17 See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32;
Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC)
at para 12.
18 See Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at paras
32 – 33; Democratic Nursing Organisation of SA on behalf of Du Toit and Another v Western Cape
Department of Health and Others (2016) 37 ILJ 1819 (LAC) at paras 21 – 22; Civil and Power
Generation Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others
(2019) 40 ILJ 2055 (LC) at para 33.
19 (2022) 43 ILJ 1618 (LAC) at par a 24.
distinct test is necessary to address such matters’. This view was
echoed in NUMSA , in which it was stated that an incorrect
interpretation of the law by a commissioner constitutes a material error
of law which ‘will result in both an incorrect and unreasonable award’,
which ‘can either be attacked on the basis of its correctness or for
being unreasonable’.’20
[35] However, another view would be that the kind of review in casu would be a
legality review, similar to a review application under section 158(1)(h).21 This
view was adopted in Golden Arrow LAC supra ,22 where the Court , having
accepted that the review is brought under section 158(1)(g), equated the
review test pertaining to thi s section to the test applicable to reviews under
section 158(1)(h) , and in particular, what had been decided in Hendricks v
Overstrand Municipality and Another23 in this respect. The Court in Golden
Arrow LAC concluded that: ‘… It does not appear to me that any justifiable
distinction can be drawn between a dispute dealing with the decision of an
appeal body concerning an exemption application and a disciplinary hearing
as was the case which confronted the court in Hendricks; hence the dicta
in Hendriks are relevant to the disposition of the present appeal .’ The Court in
Malusi Wekhaya Construction CC v Bargaining Council for the Civil
Engineering Industry and Others; H T Pelatona Projects (Pty) Ltd v Bargaining
Council for the Civil Engineering Industry and Others24 similarly followed a
legality review approach.
[36] In Hendricks supra25, the Court held that the grounds for reviewing a decision
included a review ‘… in accordance with the requirements of the constitutional
20 The Court was referring to MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers
and Construction Union and Others (2016) 37 ILJ 2593 (LAC) at para 29 and Assign Services (supra ).
21 Section 158(1)(h) reads: ‘ The Labour Court may - … review any decision taken or any act
performed by the State in its capacity as employer, on such grounds as are permissible in law …’.
22 See para 23 of the judgment.
23 (2015) 36 ILJ 163 (LAC).
24 (2024) 45 ILJ 858 (LC) at para 17.
25 Id at para 29.
principle of legality, such being grounds 'permissible in law …’.26 Elaborating
on the meaning of ‘legality ’ the Court in Hendricks27 decided : ‘…. Legality
includes a requirement of rationality. It is a requirement of the rule of law that
the exercise of public power by the executive and other functionaries should
not be arbitrary. Decisions must be rationally related to the purpose for which
the power was given, otherwise they are in effect arbitrary and inconsistent
with the rule of law. ’ In Khumalo and Another v Member of the Executive
Council for Education: KwaZulu -Natal28 ‘legality ’, in the context of a review
application under Section 158(1)(h), was described as requiring that ‘… all
exercises of public power are, at a minimum, lawful and rational. …’.
[37] In MEC for the Department of Health, Western Cape v Weder; MEC for the
Department of Health, Western Cape v Democratic Nursing Association of SA
on behalf of Mangena29 the Court described the principle of legality in the
following manner:
‘… Public functiona ries are required to act within the powers granted to
them by law. See Fedsure Life Assurance Ltd v Greater Johannesburg
Transitional Metropolitan Council & others 1999 (1) SA 374 (CC) at
para 58, furt hermore, see the seminal judgment in Pharmaceutical
Manufacturers Association of SA & another : In re Ex parte President of
the Republic of SA & others 2000 (2) SA 674 (CC) at para 85, where
the court laid down the core element of legality as follows:
'It is a requirement of the rule of law that the exercise of public power
by the Executive and other f unctionaries should not be arbitrary.
Decisions must be rationally related to the purpose for which the power
was given, otherwise they are in effect arbitrary and inconsistent with
26 In Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857
(LAC) at para 38 the Court similarly pronounced that: ‘… Permissible grounds in law would include the
constitutional grounds of legality and rationality and, if they constitute 'administrative action', on the
grounds that are stipulated in PAJA … ’
27 Id at para 28.
28 (2014) 35 ILJ 613 (CC) a t para 28.
29 (2014) 35 ILJ 2131 (LAC) at para 3 4.
this requirement. It follows that in order to pass constitutional scrutiny
the exercise of public power by the Executive and other functionaries
must, at least, comply with this requirement.'
The Court in Weder30 then proceeded to consider th e component of rationality
as part of the legality enquiry, and held:
‘In later judgme nts the court has developed this concept of rationality
requiring the executive or public functionaries to exercise their power
for the specific purposes for which they were granted so that they
cannot act arbitrarily, for no other purpose or an ulterior m otive. See
Gauteng Gambling Board & another v MEC for Economic
Development, Gauteng 2013 (5) SA 24 (SCA) at para 47. Furthermore,
in Democratic Alliance v President of the Republic of SA & others 2013
(1) SA 248 (CC) at para 39 Yacoob ADCJ held:
'If in the circumstances of a case, there is a failure to take into account
relevant material that failure would constitute part of the means to
achieve the purpose for which the power was conferred. And if the
failure had an impact on the rationality of the entire process, then the
final decision may be rendered irrational and invalid by the irrationality
of the process as a whole.'’
[38] In my view, the aforesaid discussion reveals that whether one applies a
review rest based on unreasonableness or one based on legality, the
fundamentals are the same. At the heart of it is that the decision made is
tested against what is rational and reasonable, havin g due regard to all
requisite available material and the relevant principles of law , and the purpose
for which the power forming the basis of the decision was afforded. If the
decision does not pass muster against these fundamentals, it would be
irrational , unreasonable , and disconnected f rom the purpose it is meant to
serve. On that basis, the decision would fall to be reviewed and set aside.
30 Id at para 35.
Analysis
[39] As a point of departure in deciding this matter, it is important to understand
why sectoral collective bargaining resulting in uniformity in a particular sector ,
is important. In Kem-Lin Fashions CC v Brunton and Another31 the Court had
the following to say:
‘The rationale behind the extension of collective agreements by the
Minister of Labour in terms of s 32(2) is to prevent unfair competition
which employers who are not party to collective agreements concluded
in a bargaining council may pose to their competitors who are bound by
collective agreements. Thi s is because a collective agreement
concluded in a bargaining council lays down minimum wages and other
terms and conditions of employment to be observed in respect of
employees.
If the collective agreement is not extended to non -parties, the non -
parties would be able to pay employees at rates which are lower than
those which their competitors who are party to collective agreements
have to pay to their employees. The result of this would be a serious
threat to the business of those who are parties to colle ctive
agreements. This would seriously discourage orderly collective
bargaining in general and collective bargaining at sectoral level in
particular which are part of the primary object of the Act. If this were
allowed, there would be little, if any, point in any employer seeking to
be party to a bargaining council. That would be a threat to one of the
pillars of the labour relations system in this country. ’
31 (2001) 22 ILJ 109 (LAC) at paras 20 – 21.
[40] The Court in SA Clothing and Textile Workers Union and Others
v Yarntex (Pty) Ltd t/a Bertrand Grou p32 adopted a very similar approach ,
where the Court held:
‘The constitution is premised on centralized bargaining
between NAWTM and SACTWU, the main purpose of which is to
create and maintain uniformity in the determination of wage levels so
as to ensure that all employers in a given subsector or section level in
this industry are treated in an equitable fashion. Employers and
employees in these subsectors should enjoy the same treatment to
ensure that employers compete with their counterparts in a fair m anner
in order to sustain the industry and to prevent job losses.
Any contrary interpretation of the relevant provisions of the Act and the
constitution would result in catastrophic circumstances which would be
inimical to the operation of the industry in question. Clearly the
overarching purpose of the constitution was to avoid fragmentation of
the bargaining process. ’
[41] Two last apposite reference s in this regard bear mention. First, the Court in
Komatsu Southern Africa (Pty) Ltd v National Union of Metalworkers of South
Africa33 held:
‘… the industry prescribes what can generally be termed to be
centralized bargaining. This means that all terms and conditions of
employment in the industry can only form the subject matter of
collective bargaining at central (sectoral) level in the bargaining council
itself. By necessary implication and as a matter of logic, any collective
bargaining on conditions of employment at plant level with individual
employers would be prohibited. The purpose of centralized bar gaining
is to ensure uniformity and consistency of conditions of employment in
32 (2013) 34 ILJ 2199 (LAC) at paras 58 – 59.
33 2014 JDR 1455 (LC) at para 32.
an organized industry. This creates a level playing field in an industry
where businesses do not complete with one another off the back of the
conditions of employment of their employees. Similarly, it prevents
individual employers being targeted for further and enhanced
conditions of employment just because such employers may be
considered to be larger or financially able or susceptible to agree to the
same. This kind of situati on and regulation is fully in accordance with
one of the primary objectives of the LRA …’
And similarly, the Court in Bam and Others v BME34 decided:
‘… Where centralised collective bargaining is conducted through a
bargaining council, the LRA provides various mechanisms to support
negotiations taking place at that level. One of the inducements to
parties to participate in such forums is that the agreement s reached in
such a forum can be extended to non -parties falling within the scope of
the bargaining council, subject to certain thresholds of representation
being met. This prevents competitors undercutting wages set in the
negotiations to the detriment bo th of the employer parties to the
bargaining council and to the detriment of employees of those
competitors. The LRA also leaves it up to the collective bargaining
partners to determine whether the centralised forum is going to be the
sole channel for nego tiating terms and conditions of employment, or
whether some matters can be dealt with at plant level. In the case of
BME and its employees all negotiations on terms and conditions of
employment are conducted at a centralised level in the bargaining
council . If an employer and employees are able to negotiate issues at
plant level, notwithstanding such a centralised bargaining arrangement,
it undermines the integrity of the existing centralised bargaining
process and encourages a fragmentation of bargaining. To strengthen
collective bargaining the LRA gives legal force to agreements
concluded between representative registered trade unions and
34 2022 JDR 2046 (LC) at para 117.
employers. It also promotes industrial peace for the duration of a
collective agreement by declaring strike action on a n issue dealt with in
the agreement to be unprotected. ’
[42] In sum, therefore, the import of sectoral level collective bargaining is to ensure
uniformity and consistency of inter alia wages of employees in an organized
and regulated industry. As a result, a l evel playing field is created in this
industry, where businesses do not complete with one another off the back of
the wages of employees. Consequently, competition in the industry would be
based on other differentiating factors, and the wages paid to emplo yees would
not be decisive when employers seek to compete. There is however a
downside to this. The u niformity mentioned , although highly desirable and in
keeping with the primary objectives of the LRA, is not without anomaly. It may
well be that the appli cation of a uniform standard where it comes to issues
regulated by an industry collective agreement in a bargaining council causes
undue hardship to a particular employer , which cannot just be left unchecked.
This is especially so the uniform standard is e nforced upon an employer as a
result of extensions of collective agreements in an industry to non -parties, by
virtue of section 32 of the LRA . I will later deal with what can be legitimately
said to constitute such hardship so as to substantiate relief being afforded to
an affected employer . The point that must be made is that it is the concept of
exemption that is intended to correct such anomaly . This was made clear in
Golden Arrow LAC supra, where the Court said:35
‘I agree … that the starting point of the enquiry is s 30(1) (k) which
expressly provides for the inclusion of an exemption procedure in a
collective agreement concluded by the parties to a bargaining council. It
follows that the LRA therefore legally mandates that every bargaining
council must provide for a procedure for exemption. ’
35 Id at para 17
[43] Specifically in this context, the Court in Free Market Foundation v Minister of
Labour and Others36 had the following to say:37
‘What is more, t he limitation of the right of administrative justice by s
32(2) and (3) of the LRA is ameliorated considerably by two of the
substantive jurisdictional preconditions in s 32(3): the necessity for an
independent system of exemption and the protection agains t
discrimination. These are 'the main safety valves' to protect the
interests of non -parties in a majoritarian situation. They are purposely
intended as carefully tailored and proportional means to minimise
adverse impacts on non -parties.
Once again, it i s not the place of the courts to prescribe to
the legislature about its preferred policy choices about the means of
legislative intervention, provided they are proportionately tailored.
Parliament's choice of this mechanism over a broad ministerial
discret ion is a legitimate policy preference to favour the resolution of
labour issues by domestic expert tribunals. The exemption procedure
provides several layers of protection where a majority collective
agreement has been extended to non -parties by the Minist er. A person
wishing to be exempted from an extended collective agreement will
have a right to apply to the bargaining council for an exemption; appeal
the refusal of exemption to an independent appeal body; and apply to
have the decision judicially review ed and set aside if the application is
ultimately denied. ’
[44] In the process of deciding exemption , regard must of course be had to the
exemption criteria as specified in the relevant collective agreement itself. The
LRA requires every bargaining council to specify exemption criteria which are
36 (2016) 37 ILJ 1638 (GP) at para 113 – 114.
37 See also Confederation of Associations in the Private Employment Sector and Others v Motor
Industry Bargaining Council and Others (2015) 36 ILJ 137 (GP) at para 36; Kem-Lin Fashions (supra )
at para 2 3.
fair and promote the primary objects of the LRA.38 As specifically held in
Trafford Trading supra :39
‘… For an exemption to be granted the appellant must establish a
justifiable reason why the collective agreement should not be complied
with. It is therefore incumbent upon the applicant for exemption to place
facts and evidence, before the two tribunals, representing special
circumstances that justify the exemption of the applicant from
complyin g with the collective agreement. ’
[45] It cannot be legitimately argued, as NUMSA and TOWU does, that the kind of
anomaly that arose in this case must be resolved by way of collective
bargaining, and not exemption. First and foremost, this kind of approach
would entirely negate the object and purpose of exemption , which is provide a
safeguard to individual employers from any undue hardship resulting from
being bound to the industry collective agreement, as product of the sectoral
collective bargaining. In simple terms, this is not an industry issue , and central
level sectoral bargaining is designed to cater for rules and standards in an
industry, overall, and not to resolve the needs and issues of an individual
employ er. It is unlikely that GABS would be able to influence any of the
bargaining parties to take up its cause. The problem GABS has is only
particular to it, and for this i ndustry collective bargaining is not appropriate.
There is a policy consideration as we ll. The LRA specifically recognises that in
the case of industry collective bargaining and resulting industry collective
agreements , there must be an exemption process provided as a safeguard
against undue harm where it come s to the products of such bargaining.40 To
then contend that the availability of collective bargaining to resolve issues in
itself negates the right to seek exemption, is nothing else but a fallacy.
[46] It is not without a sense of irony that one looks at the case in casu . From the
onset of the SARPBC, GABS has effectively been more than a complaint
38 See section 32(3)(f) of the LRA; Putco (supra ) at para 29.
39 Id at para 24.
40 See section 30(1)(k), as well as sections 32(3)(dA), (e) and (f) , of the LRA .
employer. It had religiously im plemented all SARPBC wage increases, and
more. This has resulted in a steady build -up of wage levels, over time, to a
situation where it is now pay ing substantially more than what would be the
minimum wage in the SARPBC. This did not matter when it was effectively the
only player in the particular market (the Province and the City) , as it could
provide for these costs in its contracts without much ri sk of losing out to
cheaper competitors . But it is when the market change d, that the approach by
GABS to subscribe to uniformity and unconditional compliance is the very
thing that placed the continued viability of its business as risk. Surely it can
legitimately be said that just as GABS had b een compliant in the past where it
came to the industry, that same industry should now accommodate GABS to
ensure the continued viability of its business .
[47] One must understand the modern economy is not static. The only thing that is
certain is that things continuously change. And where things change,
employer s must adapt, or risk failure of their business es. There are many
examples of this41, not least the case in casu . When it was virtually only
GABS in the market, wage rates were not that important, as those costs could
be catered for in its contract prices without risk of losing business. Life was
good for everyone , including the employees . But policy shifts came. The lack
of competitors in the market , from a policy perspective, was no longer
palatable. This is evident from the findings of the Competition Commission,
referred to earlier in this judgment. The implementation of this policy shift can
only mean one thing, and that is the introduction of new competitors . GABS
must then adapt to meet this new challenge. However, and if GABS, in
adapting, cannot adapt its current wage structure , that must be an albat ross
around its neck , because wage costs are more than half of its total operating
costs.
[48] On the evidence that was presented in all the matters in casu , it is undeniable
that the change has started . Practicably speaking , it is likely that GABS will
41 One example that immediately springs to mind is how retail stores had to change to cater for online
purchase s and then home deliveries. A retailer that does not adapt to provide this service will likely
not survive.
lose 30% of its business to smaller competitors , as a policy issue. But that is
not what GABS is most unhappy about. It understands this reality, and must
therefore focus on trying to retain the 70% market share it would still be
eligible for. In this market, and especially considering the plans of the City as
set out above, it will face a plethora of new competitors . As yet, one may not
know who they are, but one thing is certain, being that these new competitors
will come in at SARPBC minimum rates. The City has also made it clear that
contract s would be awarded on the basis of contract costs as being the most
important factor to consider , and that it would not be willing to consider
contract prices that cater for more than the SARPBC minimum wage rates. To
be able to effectively compete, GABS must therefore pull back its wage rates ,
one way or another .
[49] It is in the aforesaid context that th e predicament arises. Because of the fact
that the industry is regulated at sectoral level, which binds all parties to the
industry, it is impossible for GABS to lawfully implement , on a unilateral basis,
a pulling back of wages. That would contravene the main collective
agreement (s) of the SARPBC , which can then simply be enforced against
GABS, under the LRA, and full compliance executed , nullifying any unilateral
action taken . This leaves exemption as the only real and viable option .
[50] It is important for GABS to be proactive in pursuing the aforesaid exemption
intervention. It is not unheard of that businesses fail because of a failure to
identify that change is needed, and / or taking no proactive steps to make
such change in order to maintain the viability of the business. For GABS to be
reactive and wait until actual tenders / negotiations are issued out b y the
Province and / or the City, and the n only try and obtain an exemption , makes
no sense in this context , would be far too late, and is in an y event virtually
impossible to have any substantial effect at that point . To illustrate, if GABS
waits for a tender, surely at the point when it must tender, its wages stand as
they are. An exemption will not change this. An exe mption in this context can
only change things going forward. Con sidering the extent to which wages
form part of its operating costs, GABS would simply not be able to tender at
minimum rates, as it would not be possible for it to absorb the total wage
costs . But considering the nature of the exemption GABS seeks, as will be
discussed below, to seek that exemption proactively will mean that the wage
disparity with new competitors paying minimum wage will diminish over time,
starting now. This in turn means th at when the time comes in the immediate
future that GABS would have to start competing when negotiating / tendering
with the City , it will be in a far better position to submit a competitive proposal ,
even if it some extent must still absorb some higher wage costs. The evidence
shows that if successive exemption s sought by GABS is successful , on similar
terms, from the date when first applied for and until 2029, the difference in pay
between its first year drivers and sixth year drivers would reduce from 59% to
25%, which is substantial . Thus, this continuing reducing trend would go a
long way towards achieving what would be fairly close to wage parity. On the
facts, an exemption is surely earned.
[51] This brings me to the issue of financial hardship. Both NUMSA and T OWU
argued, and several of the appeal panels found, that exemption is only
competent in the case where the employer can prove financial hardship or an
inability to comply with the main collective agreement. I am compelled to
disag ree. First, exemptions are not only competent to remedy a current
predicament / hardship. Exemptions are also competent to remedy a
contemplated predicament / hardship, provided that such contemplation is
realistic and reasonably likely . I draw inspiration in making this finding from
the judgment of the Compe tition Appeal Court in Sasol Oil (Pty) Ltd v
Nationwide Poles CC42 where it was held:
‘Once a supplier has been proved to be dominant in the market and
engages in discriminatory pricing practice, the test is whether there is a
'reasonable possibility' that competition may be adversely affected by a
practice under which the dominant firm sells its goods at a cheaper
price to some customers at the expense of others.
42 2006 (3) SA 400 (CAC) at 415I -J.
This approach to eviden ce has already been set out by this Court,
albeit within the context of s 12A(1), in Mondi Ltd/Kohler Cores & Tubes
v Competition Tribunal (2003) l CPLR 25 (CAC) in para [38], as follows:
'The test is not whether a merger necessarily prevents or lessens
competition but whether it is likely substantially to so prevent or lessen
competition. As this Court observed in Schumann Sasol (South Africa)
(Pty) Ltd v Price's Daelite (Pty) Ltd . . . the decision required by s
12A(1) must be made on evidence which is a vailable to the Tribunal. In
other words, the Tribunal cannot base its decision upon "speculation of
a kind which cannot be attributed to any evidential foundation placed
before the Tribunal". But the prohibition against unjustified speculation
should not be confused with the need for a predictive judgment. The
section enjoins the Tribunal to forecast a likely possibility; that is, it
makes a predictive judgment, based on evidence which has been
placed before it.'
[52] Further, GABS has not pleaded a current financial hardship, or inability to
compl y with the various main collective agreements , as a ground for seeking
exemption, as this was simply not its case. Its case is founded on future
prospect s, or differently put, future planning, which i t considers essential to
resolve a current predicament. This current predicament will negatively impact
on the viability of its business , in the foreseeable future . One can perhaps say
the exemption is necessitated to prevent the financial hardship which is likely
to accrue in the future. In this context , any considerations pertaining to GABS
not facing a current financial predicament or inability to comply with the main
collective agreement simply has no relevance, and to decide that exemption
cannot be granted because this does not exist , is entirely misplaced and
unfounded. In any event , it is materially in error to suggest that exemptions
are only possible if there exists financial hardship or an inability to comply with
the main collective agreement s.
[53] However, an d in conducting the exemption enquiry in this case, it would not
just be about GABS and its interests. Regard must be had to the interests of
the employees. Obviously, an exemption would mean that they would not get
the increases that have been bargained for them in the industry, and will be
directly financially prejudiced as a result. Is this sufficient, in casu , to scupper
an application for exemption ? I think not. A particular consideration
immediately spring s to mind. First and foremost, the nature of the exemption
sought by GABS to some extent mitigates this financial harm. It is not as if
GABS is asking for a wage reduction or wage freeze . No exemption has been
sought in respect of those of its employees earning the SARP BC minimum
rates. In respect of employees already earning well above the SARPBAC
minimum rates, the exemption sought by GABS is that it be permitted to pay
the greater of: (a) a CPI -linked increase (provided CPI did not exceed the
applicable across -the-board (ATB) incre ase); or (b) an increase equal to the
Rand value of the applicable ATB increase on the minimum SARPBC rate s.
This would reduce the increase in cost to GABS, whilst at the very least
maintaining employee wages. This is certainly fair.
[54] One can also not turn a blind eye to the consequences of what will happen if
GABS ’s fears turn out to be substantiated , and it then loses a large chunk of
its business to new competitors . This will in all prob ability result in the mass
retrenchment of empl oyees . I am aware that NUMSA and TOWU have
effectively argued that if this is the case, then so be it, and employees should
not be currently prejudiced as a result of this possible future outcome .43 I must
confess I find this view expressed by these unions perplexing and short
sighted , especially having regard to the rife unemployment figures applicable
in our economy. Surely, if something can be done now that would save jobs
being lost in three or four of five years, then that is preferable, and should be
afforded its due weight.
[55] I now turn to the issue of unfair competition. In this context , it is the very
anomaly in the bargaining council regulating system that has caused the
problem. Ordinarily , and where it comes to a parti cular industry / sector, and
43 This contention is in line with a general position one often finds in trade unions, being, colloquially
speaking, that it is better for ten persons to be unemployed, than one person being exploited.
as I have said before, it would be highly undesirable for businesses to
compete with one another of f the backs of the salaries of the ir employees, so
to speak.44 One business should not enjoy an advantage over another
business, in the same industry, just because one business can and is willing
to exploit its employees more than the other. That is where industry
prescribed wages, as contained in extended industry collective agreements,
would serve to avoid this scenario. In short, whe re employers compete in an
industry, they should do so on the basis of paying their employees the same
wage, as a minimum .45 In Golden Arrow LAC , the Court said:46
‘If employers in the same industry were able to undercut each other on
wages or should they not be bound to pay the same wage rates, then
the harmonisation of wage rates throughout the industry which is one of
the objects of sector level bargaining would be undermined. …’
The Court concluded by saying that t he question of whether an employer
would then be faced with operating its business on an uneven playing field
needs to be taken into account when considering exemption .47
[56] This kind of level playing field relating to wages of employees works well in
the la rger industries where there a large number of employers paying more or
less the actual bargaining council minimum wages from time to time .48 In
those cases, any new business / employer coming into the industry would
come in at more or less the same wages as all the other existing employers in
the industry .49 As such, a mat erial wage disparity would never arise . But the
situation in the SARPBC is different. It is a smaller industry, with limited
employer participants. In the past , new competitors rarely entered. The growth
44 Golden Arrow LAC (supra ) at para 45.
45 Employers are of course always free to pay more, but this the employer’s own election.
46 Id at para 46.
47 Id at para 54.
48 This is for example the case in the Motor Industry Bargaining Council, the Metal and Engineering
Industries Bargaining Council, and the National Bargaining Council for the Ro ad Freight and Logistics
Industry .
49 There is room for new employers to seek exemp tions from, for example, minimum wages, in order
to allow for such an employer to establish its business. But those exemptions are normally linked to a
phase in period, with the goal being to ultimately achieve the minimum prescribed wage.
in wages, as a result of prescribed increases, over decades, for those
employers that were always part of the industry , drastically outpaced in the
increase in the minimum wage that a new entrant into the indust ry would be
required to pay. In simple terms, the very measures designed to make the
playing field level, ultimately made it not to be level , and this as a matter of
undeniable fact would unduly advantage new entrants over exi sting and long-
standing employers . This would in my view be contrary to the very objective
sought to be achieved by such industry regulation. In Yarntex supra , the Court
held that the purpose of centralised bargaining is to ensure that ‘ employers
and employees in these subsectors should enjoy the same treatment to
ensure that employers compete with their counterparts in a fair manner in
order to sustain the industry and to prevent job losses’ .50 I can see no reason
why this sentiment cann ot apply to any material wage disparity.
[57] In Kem-Lin Fas hions supra the Court dealt with the notion of unfair
competition in the case where the non -party to a collective agreement in an
industry, being able to pay wages that are less than employers that ar e a
party to the industry collective agreement. The Court held:51 ‘It is clear from
what has been said above that the mischief which the legislature sought to
prevent by s 32 is the unfair competition …’. I am satisfied that the same basic
reasoning should apply to the situation in casu . GABS is party, first as actual
party and currently as a party to whom the agreement is extended , to the
various main collective agreements in the SARPBC . As a matter of principle , it
should not be visited with unfair competition that would result from a material
disparity caused by this. If this disparity is found to exist on the facts, it m ay
be remedied by way of exemption .
[58] From the aforesaid, the following consequence results , as illustrated by
example . There may be two employers in the same industry (SARPBC)
rendering the same s ervice using the same resources and equipment, to the
same customer (the City) . Because the one employer is a long-standing
50 Id at para 58. See also Golden Arrow LAC (supra ) at para 47.
51 Id at para 22.
compl iant employer in the industry, it must , as an example, pay a prescribed
wage rate of R10 000.00 per month to its driver s. However, an employer that
is a new entrant to the industry only ha s to pay its driver s the minimum rate at
the time, which , again as an example, is R5 000.00 per month. But because
of the nature of the industry as a re gulated industry, there is nothing the first
mentioned employer can do to change its wages to meet / counter those of
the new entrant. Then, and considering wage costs are half the operating
costs, it does not take a genius to figure out that this sole eventuality would
likely render the first mentioned employer uncompetitive to the extent that its
business is at material risk .
[59] The situation in casu is made worse by the fact that fuel costs are more or
less fixed, being 25% of operat ing costs, and the fact that the new competitors
will to a large extent be supported by the City in esta blishing their businesses,
by way of the City financing and providing the busses. This in reality only
leaves the issue of the wages as basis for GABS t o try and level the playing
field, at least to the level where it is able to fairly compete.
[60] One question remains. Would the above disparity qualify as being considered
to unduly and unfairly benefit ting the new competitors to the extent that it is
unfair competition ? I believe so. No matter how one looks at it, the wage
disparity created by the regularity system itself, and nothing else, results in
one employer having a significant competitive advantage over another in the
same industry , purely off the back of the wages of employees. In J & L Lining
(Pty) Ltd v National Union of Metalworkers of SA and Others (1)52 the Court
called this kind of situation : ‘… an unfair advantage in the industry, because
its members are in effect given a competitive advantage off the back of
employees’ conditions of employment …’53. The point is that as a result of this
anomaly, an old employer such as GABS could lose out to a new employer in
the industry because it is prescribed that it must pay more, whilst the new
competitor , also by way of the same form of prescription, may pay less. In the
52 (2019) 40 ILJ 1289 (LC) at para 39.
53 The Court was referring to employer members of the employers’ organisation NEASA, who would
pay no wage increases, whilst the other employers in the industry would.
industry in casu , and because of the significant nature that the wage
component is of operating costs, it is highly likely that this factor is
determinative of securing the business. And what makes it worse, is that there
is nothing the old employer can do for itself to change this. In Schultz v Butt54
the Court said:
‘As a general rule, every person is entitled freely to carry on his trade or
business in competition with his rivals. But the competition must remain
within lawful bounds. If it is carried on unlawfully, in the sense that it
involves a wrongful interference with another 's rights as a trader, that
constitutes an injuria …’
[61] Whet her the above state of affair s would be tantamount to unfair competition
depends on a number of factors. In Phumelela Gaming and Leisure Ltd v
Gründlingh and Others55 the Court held that these factors include the honesty
and fairness of the conduct involved, the morals of the trade sector involved,
the protection that positive law already affords, the importance of competition
in our economic system, the question whethe r the parties are competitors,
conventions with other countries , and the motive of the actor. In Atlas Organic
Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd and Others56 the Court
described the norm as an objective one, in which the interests of the
competing parties have to be weighed, bearing in mind inter alia the interests
of society, the morals of the market place, and the business ethics of that
section of the community where the norm is to be applied.
[62] In casu , this is not about GABS seeking to prevent or otherwise stifling
competition. It accepts that it must face competition. Insofar as its motives are
considered, it is clear to me that all it wants is a chance to be competitive so it
54 1986 (3) SA 667 (A) at 678F -G. See also Breetzke and Others NNO v Alexander and Others 2020
(6) SA 360 (SCA ) at para 34, where it was held: ‘ Competition often brings about interference in one
way or another about which rivals cannot legitimately complain. But the competition and indeed all
activity must itself remain within lawful bounds. All a person can, therefore, claim is the right to
exercise his calling without unlawful interference from others …’.
55 2007 (6) SA 350 (CC) at para 34.
56 1981 (2) SA 173 (T) at 188H -189B.
can ensure the viability of its business. In my view, and should it be expected
of GABS to compete with new competitors in the market on the basis of the
existing material wage disparity, and with no means to remedy it, especially
considering that wage costs is the largest component of operating costs, that
would constitute unlawful interference with the business of GABS , which is
tantamount to unfair competition . It would in reality actually undermine
competition, because a competitor that is unable to compete does not
constitute real competition, which is what the policy shift demands. The
demise of a business like GABS would certainly not be in the interest of the
industry, or for that matte r the creation of employment. What one therefore
has, in this case, is undoubtedly unfair competition. The following dicta from
the judgment in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd57 is
particularly apposite:
‘In unlawful competition cases it has been suggested that the boni
mores or reasonableness criterion on its own is often too vague to
provide a rational yardstick for the delimitation of the right to goodwill in
the wrongfulness enquiry. Van Heerden & Neeth ling suggest that the
particular concretisation of the boni mores test may be found in what
they term the 'competition principle':
'The competition principle is therefore that the competitor who delivers
the best or fairest (most reasonable) performance, must achieve
victory, while the one rendering the weakest (worst) performance, must
suffer defeat. . . .
Victory over a rival may be obtained in two ways: either by offering
the same performance at a lower price, or by bettering performance at
the same pri ce.'
Van Heerden & Neethling recognise that this principle can be properly
applied only where the activities of the competitors are comparable, or
expressed differently, where the playing fields are even. Where the
57 2017 (1) SA 613 (CC) at paras 49 – 50.
playing fields are even, or in their ter ms, where there is 'performance
(merit) competition', competitive conduct by a rival will in principle be
lawful. ’
[63] Next, o ne cannot wish away, as NUMSA and TOWU seek to do, several
pertinent findings already made by the Labour Appeal Court in Golden Arrow
LAC. These findings, properly considered, support the notion advanced by
GABS concerning its current predicament, and what the consequences
thereof to its business would be. These findings would certainly support the
granting of exemption. Par ticular reference is made to the following dicta from
the judgment :58
‘The narrow approach adopted by the second respondent to the scope
of the enquiry as required in terms of clause 13 of the exemption
procedure resulted in a decision which had not taken in account of the
appellant’s central argument, namely that, absent an exemption, it
would not be able to compete with new entrants into the market who
would only be bound to apply the base minimum wage contained in the
2018 MCA and that, pursuant thereto , the appellant would be obliged to
continue to maintain wage rates in perpetuity which were far in excess
of the industry minimum This would allow competing employers,
including new entrants into the market, to undercut it on wages by
paying a rate which is vastly lower than that which, absent the
exemption, the appellant would be obliged to pay. …’
[64] Exemption applications are commonly used to give new employers a foothold
and start in an industry , by allowing such employer to pay less than minimum
wage for a period of time. I believe that in the same manner , an exemption
application may be used to allow existing employers that are rendered
uncompetitive by the application of the industry regulatory measures to
remedy that situation. After all, what is fair in a level playing field must be fair
to everyone in the industry , and not just some. In short, exemption must be a
58 Id at para 48.
competent tool to use to eliminate unfair competition , where the unfair
competiti on results from the application of the very regulatory measures of the
industry itself.
[65] In the end, and what GABS brought forward in each of its exemption
applications was something qu ite bespoke, so to speak. The case it
advance d, and in respect of which it represented what is in my view largely
undisputed evidence , is one based squarely on special circumstances . These
special circumstances are : (1) There was a change in policy and
circumstance in its market place , which change was out of its control ; (2) this
change resulted and / or is going to result in it having to compete with a
number of new competitors in the market to retain its business; (3) as a result
of historical compliance with the SARPBC main collective agreements , it was
required and obliged to pay wages which increased over time to be materially
in excess of those wages that would be paid by the new competitors , resulting
in a material wage disparity in the same market; (4) considering that wage
costs are in excess of half of total operating costs, this wage disparity
rendered it uncompetitive, which w ould be unfair ; and (5) The exemption was
essential to make GABS more competitive and so ensure the continued
viability of its business. This was the case the various exemption decision
makers had to decide. It was never about conducting so me sort of balanc ing
exercise to try and decide what is fair to all parties . In Putco supra , the Court
was critical of such a general approach being followed where a specific case
for exemption was presented,59 and held as follows:60
‘The applicant, having placed before both the exemption and
appeal authority special circumstances in the form o f facts and
evidence that clearly justify an exemption from compliance with the
main agreement, was entitled to expect the respective exemption
authorities to interrogate the evidence and to make a considered and
reasoned decision, based on that evidence, as to whether or not the
59 In Putco, the special circums tances case was focused purely on financial distress as ground for
exemption.
60 Id at para 30.
exemption sought ought to be granted. While the factors listed in the
main agreement are generally relevant, the crisp issue in the present
instance was one of affordability. It was not open to the exemption and
appeal authorities to treat the matter as one would a wage arbitration,
where the decision maker’s function is largely redistributive in the
sense of a balancing of competing interests and the determination of a
fair outcome that seeks as far as possible to reconcile those i nterests.
The nature of a process in which a party seeks exemption from the
terms of a binding collective agreement on the grounds of affordability,
raised as starkly as they are in the present instance, is less about
reconciling competing interests than t he determination of a factual
dispute. In this instance, the decision maker is required, primarily at
least, to ascertain whether on the evidence, a proper factual case has
been made out for an exemption in the terms sought. In the present
instance, there was no evidence submitted by the union parties
opposing the granting of the exemption that seriously called into
question the dire financial straits and issues of affordability recorded in
the applicant’s submissions. In those circumstances, it was not ope n to
the exemption authorities to reject the applicant’s version in the
summary terms that they did, and impose their view of an equitable
settlement on Solomonic terms. ’
[66] In any event, the case of GABS in casu is one that can competently resort
within the parameters of clause 13 of the SA RPBC exemption procedure. This
is because the clause records that ‘all relevant factors’ when deciding an
application for exemption must be considered. Not only are the considerations
advanced by GABS relevant factors , but what the wage disparity and the
resultant unfair competition issue contemplate , must surely be special
circumstances relating to the continued viability of the business of GABS ,
being factors specifically mentioned in the clause. In short, there is a proper
case made out for exemption in terms of clause 13 itself. As said by Prinsloo J
in Golden Arrow Bus Services (Pty) Ltd v South African Road Passenger
Bargaining Council of South Africa and Others61:
‘The Second Respondent had no regard for the factors set out in clause
13 of the exemption procedure and glaringly absent from the appeal
ruling is a consideration of 'all relevant factors', which were obviously
relevant and material in deciding the exemption application. Evidently
from the exemption application and the transcript of the appeal, specific
submissions were made on a number of issues inter alia, on 'special
circumstances'. In fact, it was submitted to the Second Respondent
that this was a 'classic special circumstances cas e' with specific
reference to the 59% pay disparity. ’
[67] The above being the general considerations in casu , as I see them, I will now
turn to deciding the four individual review applications , in order to determine
wheth er the exemption decisions made by the SARPBC panellists referred to
therein pass muster on review. I will do so in the sequence of the relevant
main collective agreements themselves.
The 2018 Agreement – Case Number C 688 / 21
[68] The exemption appeal pertaining to the 2018 agreement, after two rounds
before the Labour Court and one round before the Labour Appeal Court,
finally came before panellists Patelia, Bosch and Wessels . As indicated
above, the panellists refused the appeal. The core reasons for refusing the
exemption appeal have been touched on above, and are dealt with below.
[69] From the outset, it is apparent to me that the panellists had very little regard to
what constituted the core of GABS’s case, which case I have already
summarized above. In the context of such a case, the panellists need ed to
consider and decide a number of crucial considerations . The first is whet her,
on the evidence, it had been shown that the wage dis parity existed. Second, it
61 Unreported Case Number C35 1 / 2019 (dated 17 October 2019) at para 57 .
had to be determined whet her such disparity resulted in GABS being
subjected unfair com petition , which c ould only be remedied through
exemption . The third is wheth er the viability of the business of GABS, as a
result of the predicament it was facing, was being threatened. Once these
three questions were answered in favour of GABS, on the facts, there would
be no reason why exemption could not be granted. If positive answer s to
these three questions w ere not proven, then the exemption case had to fail.
This approach would be in line with what the Court said in Putco and Tradex
Trading .
[70] But instead of answering these questions, it appears to me that the panellists
instead sought to contradict the very notion of unfair competition , as relied on
by GABS, as being able to serve to substantiate an exemption. They found
that ‘ unfair competition ’ in the context of exemption only meant unfair
competition relating to SARPBC minimum wages, or in other words where
one employer in competing with another, pays less than the minimum wage.
They also believed that it was not the function of exemption to ‘ assist’ a
competitor by levelling playing fields. I must confess I find this approach
perplexing, considering the fact that the panellists were favoured with the
judgment of the Labour Appeal Court in Golden Arrow LAC supra , containing
the clear sentiments discussed above. I must add that where the main
collective agreement , as is the case with the 2018 agreement, prescribes ATB
increases on employees' actual wages , it renders this increased wage to be a
prescribed wage the employer would be bound to. When compared to
employers only required to pay the minimum prescribed wages , this leads to a
material wage disparit y between employers bound by the same collective
agreement , hence the need for exemption. The panellists failed to have
regard any of this.
[71] The panellists also found that amongst competitors , in general , there is
seldom a completely level playing field. This may be so. But the point was that
GABS was n ever seeking to stifle competition through obtaining exemption .
Instead, it was seeking fair competition through exemption . As I have
discussed above , and in the context of competition, a level playing field does
not contemplate zero differentiation . It is only when the playing field is so
unequal that it can be considered to be unfair towards a particular player , that
competition on such basis would be unfair. Unfair competition is actionable,
and in this case, that action would be seeking exemption. The panellists
irregularly failed to appreciate this.
[72] In the end, the panellists materially erred in adopting the approach that they
did where it came to the issue of unfair competition , for the reasons already
elaborated upon earlier in this judgment . On this basis alone, the appeal
decision falls to be reviewed and set aside.
[73] Whilst the panellists accepted the evidence that competition will increase as a
result of the policy objectives set out earlier in this judgment, they no netheless
concluded that it was ‘… uncertain as when the increased competition will
become a reality …’. This reasoning shows that GABS’s actual case was
misconstrued , and to an extent, certain facts were also ignored. Whilst it
cannot with certainty be said at what point GABS would have to start
submitting competitive tenders / negotiations , the undeniable reality is that it
will have to do so at some point in the foreseeable future . The probable
timelines appeared especially from the MyCity RBT plans, which confirmed
that this will happen in the foreseeable future. This meant that if GABS
wanted to be competitive when the time came, it needed to take remedial
action now. In short, pro active immediate action was essential to the future
viability of its business. The panellists needed to make a determination on the
issue of this foreseeability . They simply failed to do so, thereby negating
pertinent facts.
[74] The panellists accepted that a wage disparity existed. So at least that part of
the case was proven. However, the panellists negated this fact by finding that
‘… it is not envisaged or required that employers in an industry pay the same
wages …’. Whilst this may be correct , this is not the point. The point is that a
material wage disparity that had a particular adverse result, such as depriving
one employer of the ability to fai rly complete with the other employers, is the
real issue. This issue cannot be d ecided by simply saying that this
differentiation is all right , because it is not expected or required that all
employers pay the same. So, the panellists misconstrued th is issue , thus
committing a material error of law.
[75] It appears to me tha t what the panellists proceeded to do was to seek to apply
the individual provisions as contained in clause 13 of the exemption
procedure , on the basis of a check list kind of approach, in order to establish
why GABS should not be granted exemption , despite the actual case GABS
sought to present. This is not in line with the proper approach to be followed ,
as I have discussed above . The provisions of clause 13 are not some kind of
check list, in respect of which all the boxes must be ticked before exemption is
granted. For example, and as relevant in casu , there may be particular speci al
circumstances in a case that would justify exem ption on its own , without
having to trawl through all the other listed consideration s, individually . GABS
essentially relied on special circumstances that detrimentally affected its
continued viability , if left unchecked. This case was effectively ignored by the
panel lists, in favour of a check list approach . It follows that the approach
adopted by the panellists in deciding the exemption is in error, and irregular.
[76] Turning then to so me of the individual findings made by the panellists , it was
held that hat it would set a poor precedent to grant an exemption to GABS , as
it was a ‘profitable and well-resourced ’ employer. Yet again, this finding
completely misses the point and is tantamount to adopting the wr ong
approach. First, the finding contemplates that for GABS to succeed it must
show immediate financial distress. As discussed, this is not a requirement that
must be satisfied to attain exemption , and in any event, it was never GABS’s
case. Second, there can never be an issue of a ‘poor precedent ’. Exemption
in a case such as this is uniquely fact specific pertaining to a particular
employer, and granting exemption in such a bespoke circumstance cannot
serve as a precedent for others. Every employer seeking exemption on a
particular basis must prove its case on the particular facts. Regardless, and
as discussed earlier in this judgment , it is open to GABS to proactively take
action to ensure the future viability of its business, without staring actual
immediate financial disaster in the face , provided it can prove the risk to its
continued viability . On the facts, this is what GABS did. Consequently , the
panellists misconceived the nature of the enquiry and applied irrelevant
considerations.
[77] The panellists were critical of the fact that it could not be shown that there
were no other existing employers in the industry who paid more than the
minimum wage or who might also have their own notch systems. This is a
misdirection. It does not serve any purpose to conduct a comparative exercise
to see if there are other existing employers in the industry having the same
predicament. Even if there are others, who do not seek exemption , that
cannot by any measure disqualify GABS from obtaining exemption . GABS
conducts its own business, in its own unique circumstances, in which it faces
its own predicament. In casu , the approach adopted by the panellists negates
material facts. GABS’s predicament was never caused by existing
competitors . It was caused by the contemplated introduction of new
competitors into the same market that GABS operates in. The undispute d
evidence establishes the basis upon which these new competitors will
compete with GABS , and that is the issue . As such, th is consideration relied
on by the panellist s as one of the factors to decline GABS’s exemption is
irrelevant , and was not a valid consideration.
[78] As GABS has pointed out, the actual wage rates paid by other existing
employers in the industry are not publicly available . In addition, and
considering the industry , where business is ordinar ily secured by way of
tender, competing employers would be unwilling to make this information
available to GABS . This made it im possible for GABS to place comprehensive
information before the panellists regarding actual wages paid by other existing
employers in the industry . To make matters worse, NUMSA and T AWO made
application to the SARPBC for disclosure of the wage rates paid by all
employers in the sector , which application G ABS supported . But the SARPBC
conveyed that this information was not available to it and the panellists
accepted that th is wage information was not in the possession of the
SARPBC. It was thus not possible to place the kind of information the
panellists alluded to, before the panel lists. Nonetheless , GABS did what it
could. It showed that most of its wage rates exceeded even the existing
competitors, such as Algoa Bus and Putco . It gave examples of its ‘five years
of service ’ rate being 54% higher than that of Putco , and its ‘seven years of
service ’ rate being 32% higher than Algoa. But none of this mattered much, as
there were no suggestions nor evidence that any of these two competitors
would complete with GABS in its principal market, being the Province and the
City. But at least GABS did show material wage disparity, even with cu rrent
competitors.
[79] The panellists found that it was not apparent that the new competitors w ould
supplant GABS as service provider and that it would remain what the
panellists termed ‘a significant player ’. These findings are not based on any
facts, and are nothing more than assumptions. Properly considered, these
assumptions are irreconcilable with the established facts . These actual facts
have been ventilated above, and there is little doubt, on the probabilities, that
if the material disparity between the wage rates of GABS and any new
competitor paying minimum wage remain as they are (or even increas ing
which would be case without exemption), GABS is likely to lose a substantial
part of its business. It should not be expected of GABS to have to run this risk.
In any event, what is a ‘ significant player ’ is a subjective view. I cannot accept
that it can justifiably be argued that if GABS for example is likely to keep only
30% of its business, the fact that it would still be a ‘ significant player ’ in this
context should serve to deprive it of exemption. This reasoning of the
panellists is factually unsustainable , and a misdirection.
[80] The panellists even went so far as to find that the conduct of GABS in
prosecuting its exemption application had a negative effect on its
relationship with trade unions . This finding is entirely inappropriate. This is
not only a completely irrelevant consideration, but seeks to chastise GABS for
exercising a right it has under law, as afforded by the LRA , and the 2018
agreement itself. It can surely never be said that because an employer applies
for exemption, that act itself should serve as a factor to be considered to
refuse exemption, because trade unions are not happy with it. I venture to say
that it will be a rare occurrence indeed for trade unions to be happy with any
such application for exemption. This issue simply cannot feature in the
equati on.
[81] But in the end, a material failure perpetrated by the panellists is that a large
portion of their reasoning is devoted to the issue of the absence of financial
distress . The panellists were at pains to illustrate that as far as they were
concerned , GABS did not qualify for exemption, because it was not in
financial distress , it was financially strong and profitable, and it could afford to
pay the increases . So, they decided against GABS on the basis of a case that
was never GABS’s case. As discussed earlier, GABS never sought to suggest
that it was in financial distress, nor did it seek to present evidence to support
such a conclusion. It was thus inappropria te for the panellists to consider this
as an issue in refusing exemption.
[82] Overall considered, the appeal determination by panellists Patelia, Bosch and
Wessels is unsustainable on review. Whether the reasonableness test is
applied or the review is considered on the basis of legality, the review must
succeed. In sum, this is firstly because the panellists decided the exemption
on a basis they were never called on to decide , which is irregular . Where it
comes to the case they were actually called on to decide, a material error of
law was perpetrated in considering the issue of the wage disparity and the
unfair co mpetition complaint associated with it. Then regarding the facts, the
panellists misconstrued the same by taking into account irrelevant
considerations, and negating revenant and important fact s, which would
certainly render the outcome unreasonable. And finally, undue emphasis was
placed on entirely irrelevant considerations, which e qually leads to an
unreasonable and irregular outcome. As said in Putco supra :62
‘In summary, the failure by the third and fourth respondents in their
capacities as the exemption authority, and the second respondent, in
his capacity as the appeal authorit y, to interrogate properly the
62 Id at para 34.
evidence before them, and to provide substantive reasons for
their decisions, constitute material misdirections . The appeal
determination thus falls to be reviewed and set aside. ’
It follows that the appeal determination be reviewed and set aside.
The 2020 Agreement – Case Number C 313 / 21
[83] The exemption appeal relating to the 2020 agreement came before panellists
Macun and Godfrey . This exemption appeal was considered before the
judgment in Golden Arrow LAC came to hand , and this judgment itself was
therefore not before the appeal panel. This appeal was also refused by the
panellists . It is noteworthy that much of the reasons for refusing the appea l
were the same or similar to the reasons given for the refus al of the exemption
appeal in the case of the 2018 agreement , discussed above . This included
that: (1) impermissible wage differentiation that results in unfair competition
only relates to employ ers competing by not paying minimum wages ; (2)
immediate financial hardship being required and not being proven; (3) the lack
of proof of comparable wage rates / wage notches at other competitors ; and
(4) applying a check list approach to deciding the exemption application
without deciding the real case presented by GABS.
[84] Where the reasons for refusing the exemption appeal pertaining to the 2020
agreement overlap with those for refusing the appeal relating to the 2018
agreement, I do not intend to deal with those reasons again, and I simply
repeat what I have already said, above. Therefore, on the same grounds that I
have already summarized , this reasoning by panellists would be
unsustainable on review, and would fall to be reviewed and set aside.
[85] Ironically, the panellists appeared to acknowledge that the effect of the ATB
increases prescribed by the main collective agreements, as applied to wage
notches in place at GABS, meant that these increased wages then become
‘locked -in’ as prescribed wages. But despite contemplating this, the panellists
still f ound that the notion of a level playing field must be confined to
precluding employers paying less than prescribed minimum wages. This
reasoning is contradictory, for the simple reason that a prescribed wage in
this context would the same as a minimum wage. There is no reason why
the level playing field principle should not equally apply in such a case.
[86] The panellists also accepted that GABS’s areas of operation and its market
would be subjected to significant competition in future, and in particular , this
would directly impact on its key areas of operation . It was further accepted
that negotiations / tenders for busin ess in this market would be assessed by
the City with direct reference to SARPBAC minimum wages, and that this
provid ed the new competitors, which would come forth, with a competitive
advantage over GABS. And finally, it was accepted that not granting the
exemption could potentially have negative consequences for job preservation
should GABS be unable to compete effectively . These findings of the panellists
themselves certainly do support the granting of exemption to GABS. Yet,
inexplicably, it was refused.
[87] Some of the reasoning of the panellists bear specific mention. According to
the panellists : ‘Granting an exemption at present would therefore be
unlikely to solve the problem the applicants face in bids that would have
to be submitted for contracts within the next three to four years. ’ This finding
is not supported by the facts. Although it is likely , considering the limited
nature of the exemption sought by GABS, that it would take longer than three
to four years to achieve what can be considered to be acceptable wage parity,
what was not appreciated is that GABS must start somewhere. It has chosen
a course of action that was not excessively interventionist, and which gave
due consideration to its employees. That meant it would take longer to solve
its problems . It is in my view an untenable proposition that this should be held
against it. But this finding of the panellists misses a crucial point , which I have
already dealt with, but which I feel I must emphasize. Undoubtedly, the
problem exists and must be solved. The quicker GABS s tarts to remedy the
problem, considering what will come, the more likely it is that it will be able to
fairly compete when the time to do so arises. In the end, the lesser the wage
disparity each time GABS is required to negotiate or tender, the better
GABS’s position would be with regard to its ability to fairly compete. As the
saying goes, this is not a sprint, but a marathon . Effectively, the panellists
held it as a factor against GABS that it had tailored the exemption relief
sought to strike a balan ce between ensuring the future viability of its business ,
whilst at the same time balancing the interests of its employees to ensure that
their wages are at least not eroded away. This finding is irrational and
unreasonable.
[88] The panellists decided that the delay in the devolution of contracting authority
function from the Province to the City, in respect of the contracts GABS had
with the Province (which was still being maintained on an entirely temporary
basis ), was an impediment to the introduction of competition within the Cape
Metropole. There is however no factual substa nce of this finding. On the facts,
the City has actually rolled out the MyCiti service, and implemented the first
part of it, with Phase 2A lo oming, and this is the biggest competitive threat to
GABS’s operations. In short, what the City has announced it is going to do is
effectively a done deal, and this will to a large extent replace t he contract with
the Province. There is no delay in devolution as the panellists believe. T he
devolution has be en decided, and its roll out has started. That is the trigger, a
fact which the panellists unreasonably failed to appreciate .
[89] Just as it was with the exemption appeal finding relating to the 2018
agreement, the panellists placed some emphasis on the notion that GABS must
resolve its predicament by way of collective bargaining. As I have already said,
this is no solution at all. I may add that collective bargainin g in this context is
about the indus try and not about GABS’s individual interests. I in any event find
it highly unlikely that the trade unions in the industry would ever agree to
anything that compromises wage increases negotiated for employees. This is
certainly substantiated by the fact that the trade unions believed t hat the wage
disparity in this instance is reasonable , appropriate and actually contemplated
by collective bargaining , so there is hardly a reason for them to agree to
anything that would contradict this view. Further, and on the evidence, the
other employer parties to the SARPBC had no interest in assisting GABS.
Considering the aforesaid true facts, as well as the principles I have already
discussed, the finding by the panellists that this is any kind of solution to
GABS’s problems is misdirected and irrational, and as such reviewable.
[90] But to make it even worse, the panellists suggested that GABS had the option
to attempt plant level bargaining , and was critical of the fact that there was no
evidence that this option had been explored. The suggestion that it was open
to GABS to pursue plant -level bargaining is patently wrong . This is because
wages for the industry are bargained and then agreed to, only at a central
level in the SARPBC. In this context , plant level bargaining is prohibited.63 It is
impossible for GABS to negotiate itself out of the wage s prescribed in the
2020 agreement by way of concluding a plant level agreement with the trade
unions and its employees, as it will always remained bound by the terms of
the 2020 agreement which can be enforced against it, despite any plant level
agreement.64 The only remedy available is exemption.
[91] And finally, similar to the 2018 exemption appeal findings, the panellists
were concerned that granting the exemption would create the wrong
precedent and even went so far as to find that this could: ‘… lead to a
situation where there is instability in the bargaining council and a possible
increase in unfair labour practice disputes in terms of section 186(2)(a) of the
LRA’. As I have discussed earlier, exemption bodies deciding exemptions
under the auspices of a bargaining council do not make findings that bind
future exemption bodies , as such decisions are very much individ ual employer
and fact specific . But more importantly, to in effect say that a factor to be
considered in refusing exemption is because other employers may seize on it
and seek exemption , is simply not acceptable. The fact is that if other
employers believe they may have a case for exemption based on similar
grounds as GABS , those employers must still prove the existence of those
63 See Wallenius Wilhelmsen Logistics Vehicle Services v National Union of Metalworkers of SA and
Others (2019) 40 ILJ 1254 (LAC) at paras 27 – 28; Air Chefs (Soc) Ltd v National Union of
Metalworkers of SA and Others (2020) 41 ILJ 428 (LC) at para 20.8.
64 See s ection 33A of the LRA . In SA Local Government Bargaining Council v Ally NO and Another
(2016) 37 ILJ 223 (LC) at para 71, the Court said: ‘ The real purpose of s 33A was to enable
bargaining I councils to enforce, on behalf of employees under their jurisdictions the provisions of the
bargaining council main agreements where it comes to employment conditions and benefits
applicable to such employees under the collective agreements …’.
grounds , on the particular facts. And f inally , there was simply no evidenc e of
significant numbers of employers facing similar predicaments , and standing in
a queue to follow GABS’s lead . The opposite was in fact true, in that GABS’s
predicament was uniquely bespoke in a specific market, and this in all
likelihood will apply to no one else.
[92] Therefore, it is my view that the appeal decision by panellists Macun and
Godfrey is unsustainable on review, as it is irrational , constitutes an error of
law, is founded on a number of misdirection s, and simply cannot be
considered to be a reasonable outcome. It must be reviewed and set aside.
The 2021 Agreement – Case Number C 93 / 22
[93] The exemption appeal relating to the 2021 agreement was decided by
panellist Nkopane . On this occasion, it appears that the panellist had proper
regard to the judgment of the LAC in Golden Arrow LAC . This is evident from
the fact that the panellist correct ly identified the case GABS had advanced in
support of its application for exemption, as being the wage disparity resulting
from the historical events in the SARPBC, and the consequent unfair
competition GABS would be subjected to as a result of policy changes
effected in the industry introducing new competitors , and in particular, in the
market in which GABS did business. The panellist then accepted this case as
constituting proper grounds for the granting of exemption . This meant that all
the panellist had to decide was whether the wage disparity issue in this case
would likely lead to GABS being subjected to unfair wage competition with the
new employers to be introduced into the industry, which involves a
determination of wheth er the facts supported this notion.
[94] In this instance , NUMSA and TOWU accepted that the market in which GABS
would continue to operate would change, and will increasingly be
characterised by greater competition, specifically where it came to smaller bus
operators and t he introduction of new operators. NUMSA and TOWU further
accepted that the Province and the City has every intention of giving effect to
the policy changes requiring this competition in the industry. This meant that
an important factual consideration was actually undisputed. In this context, the
panellist held: ‘ … because of the constitutional and statutory imperatives
applicable in the bidding process, from a pricing perspective the appellants
would not be competing on an equal footing with the new entrants in the
market due to the high wages that they are locked in …’. In particular with
regard to wheth er there would be competition in the context of the City's
MyCiti project, the panellist said: ‘... there will definitely be competition …’. As
to why GABS would not be able to fairly compete, the panellist decided: ‘ …
On the evidence which is also undisputed GABS submitted that the City is
only willing to pay labour costs at a minimum rate agreed to within the Council.
In relation to Phase 2A GABS would be seriously threatened as this has been
its core operation if it is unable to compete with the new entrants on an equal
footing …’. And finally, the panellist specifically accepted that GABS’s high
wage rates would render it unable to compete with the new comp etitors
paying minimum wage, by finding: ‘… I agree with the Appellants that when
competing for these contracts the Appellants would not be competing on the
same footing with the new entrants in the market as the wages that they pay
would be higher. ’
[95] So far so good. In fact, and having accepted that the case of GABS would
justify the granting of exemption, and that the aforesaid facts supported such
a case , there would be no reason why the exemption should not be granted,
especially considering the limited nature of the exemption sought . But that is
not how matters unfolded. Instead, the panellist decided that exemption
should not be granted, for the simple reason that GABS had failed to show
that it would be disadvantaged against every possible competitor with whom
the City might wish t o contract . According to the panellist , a comparison that is
limited only to GABS and the envisaged new competitors does not take into
account the fact that at this stage there is no basis to conclude that
competition would only be between these role players , and i t is only when the
City commences with negotiations that all possible competitors could be
determined. I must confess that I find this reasoning difficult to comprehend ,
especially considering the panellist’s own factual findings. The gist of what is
contemplated by the City , especially in Phase 2A of the MyCity project, is the
introduction of new competitors . There was never really an issue of a threat
that the market will be opened up to existing operators. It would in any event
be unlikely that existing operators would be only paying minimum wage. The
panellist became embroiled in completely irrelevant considerations , as it clear
on the facts that the real issue was the new competitors, and this alone would
justify the granting of exemption. Considering m ore in this context is just
speculation.
[96] In any event, the reasoning of the panellist referred to above , despite her own
earlier findings, returns to the proposition that it is not perm issible to take
proactive measures to mitigate the wage disparity as cause for the unfair
competition. This seems to contradict her own reasoning. Nonetheless , earlier
in this judgment, I have already dealt with the entitlement of GABS to take
proactive measures to ensure the viability of its business . To reiterate , to wait
for the negotiation to first happen before seeking exemption is simply far too
late, and will serve very little purpose. This reaso ning of the panellist is thus
reviewable.
[97] In this exemption appeal, NUMSA and TOWU suggested that GABS set up its
own new competitors , and then compete using these new entities. The fallacy
with this reasoning is that these new competitors would have to be staffed by
GABS’s existing staff completement, who would then have to accept minimum
wage in those new entities , which is highly unlikely. Further , it may well be
said that this conduct would constitute a transfer of part of a business, as
contemplated by section 197 of the LRA, which means that there would have
to be movement of the existing staff of GABS to the new entities on the same
terms and conditions of employment. And finally, even if GABS is able to staff
new entities with new staff at minimum wage, its existing employees would
face retrenchment, with all the costs and job losses associated with it. This
proposed solution is no solution at all.
[98] The panellist , just as happened in the previous exemption appeal, attached
some importance to what was described at GABS’s legacy advantages .
These so -called legacy advantages relate to GABS’s long history in the public
transport sector and tis relationship with the City , which, according to the
panellist, would not readily be discarded by the City . It was reasoned that this
considered, it was likely that GABS will still retain significant business, even if
it may lose some of it. This p urported advantage based on historical dealings
with the City is without foundation in evidence, and nothing but pure
speculation. The assumption in any event flies in the face of the panellist’s
own finding of fact that that the City would not consider pr oposals / tenders
not based on SARPBC minimum wage, which will be the decisive factor,
which effectively negates any historical advantage.
[99] The panellist also dealt with GABS’s contract with the Province , finding that
the fear expressed by GABS of losing the contract with the Province may be a
possibility, but it is not supported by any evidence . This finding negates
undisputed evidence. As stated earlier, the contract GABS currently has with
the Province is an ‘interim ’ contract , the continued existence of which was
precarious , being terminable at any time on notice without cause, by the
Province . Added to this, there are the recommendations of the Competition
Commission set out earlier in this judgment, which makes this termination
likely. Then there is also the fact that the City would take over most of the
transport functions of the Province . GABS also presented the recent example
of the Eastern Cape Province terminat ing Algoa ’s interim contract on three
months' notice . In the end, the risk is real, and it was irrational of the panellist
to find otherwise.
[100] Therefore, and in the case of the exemption appeal pertaining to the 2021
agreement, the panellist’s own findings of fact and law should have resulted in
exemption being granted. However, the panellist became embroiled in
irrelevant or unfounded considerations, which was irregular and
unreasonable, rendering her decision reviewable. It falls to be review ed and
set aside.
The 2022 Agreement – Case Number C 684 / 22
[101] The last episode in the current saga relates to the exemption application in
respect of the 2022 agreement, which came before panellist De Wet . In this
instance, however, GABS emerged victorious . The panellist accepted the
case of GABS I have set out on several occasions earlier in this judgment,
and further accepted that the facts established that exemption should be
granted to GABS on the basis of such case. For all the reasons already dealt
with in this judg ment, these findings by panellist De Wet cannot be faulted.
[102] This time the exemption decision has been challenged by NUMSA and
TOWU. The grounds for the challenge are essentially based on the same
grounds for opposing exemption throughout, and which featur ed in the earlier
exemption appeals. I have discussed all these grounds in detail, a nd do not
intend to do so again. For the reasons already given, I do not believe these
grounds have substance, and thus cannot serve as a basis for the successful
challenge of the decision by panellist De Wet .
[103] I will however touch on some issues raised. NUMSA and TO WU complained
that GABS was successful and profitable, can afford to pay the bargained
increases , and was thus not deserving of exemption. This kind of submission
completely misses the point. This may be the position with GABS currently.
But that may well not be the position in the next few years. In fact, and once
the evidence is properly considered , GABS’s position will be substantially
worse once the new bus transport dispensation is rolled out by the City. What
NUMSA and TOWU appear not to be able to comprehend is that if attenuated
measures can be taken now to avoid GABS staring down the barrel of a gun
when the time comes, then surely that could and should be done. As I have
said, is not only about financial distress.
[104] According to NUMSA and TOWU, granting exemption will undermine the
institution of collective bargaining . I cannot see how. Integral to the very
system of collective bargaining at a sectoral level is the availability of
exemption, should circumstances at a particular employer justify it. If the very
notion of granting exemption undermines collective bargaining, which is what
NUMSA and TOW U appear to suggest, then it would render the institution of
exemption superfluous. That would be contrary to the very scheme
propagated by the LRA. The simple reality is that the institution of sectoral
level collective bargaining may on occasion give rise to inequitable results .
These kinds of results must be able to be remedied. Hence exemptions ,
which are entirely fact specific. The current matter, in my view, is a perfect
case in point. The contention raised by NUMSA and TOWU in this respect is
unsustainable .
[105] NUMSA and TOWU suggest that granting exemption will give GABS an
advantage relative to other employers in the sector who pay ab ove the
minimum wage. Notionally, this can perhaps be said. But it completely
discounts the bespoke and fact specific nature of the exemption sought. In
this case, it is simply not about GABS competing with other established
competitors . It is about GABS having to compete with new competitors in its
core marketplace forming the greatest portion of its business, in which specific
market the other established competitors do not complete. An unfair
advantage being afforded by the exemption ov er the other established
competitors paying more than minimum wage must at least be foreseeable
and realistic. It is not. The contention, in my view, has no substance , if regard
is had to the specific facts of this case.
[106] A further argument presented by NU MSA and TOWU is that the purpose of
sectoral level bargaining is not to set equal actual wages across a sector , and
that w age bargaining in this context does not aim to achieve complete
consistency in wage levels in a sector. According to NUMSA and TOWU,
sector collective bargaining is also not an exercise in eliminating differences in
salaries as between companies (employers) . I accept that there is merit in
these argument s. It ha s never b een the case that sectoral level collective
bargai ning envisage s that wages paid by all employers in a particular sector
must always be as level as a glass plate. I also accept, as I have already
discussed , that a t least the accepted notion of unfair competition sought to be
eliminated by sectoral level collective bargaining is that all employers must at
least pay the prescribed minimum wage and cannot be allowed to compete
with wages below the minimum wage (this is a notion s upported by NUMSA
and TOWU themselves). But what the aforesaid argument by NUMSA and
TOWU fails to appreciate is that sectoral level collective bargaining on wages
does two things. First, it sets a minimum wage level f rom time to time.
Second, and for thos e employers paying above minimum wage, there is a
prescribed wage increase for employees . Once this prescribed wage increase
is applied, the increased wage at the employer becomes the prescribed wage.
The next wage increase will then apply to this earlier prescribed wage, with
the further increased wage then becoming the next prescribed wage, and so
on. If this is applied over time , it could lead to a significant wage disparity
between the minimum wage, and what is effectively the prescribed wage. In
turn, there are only two ways to counter this. The first is that all employers in
the industry always pay more or less the same wage, by paying what is the
minimum wage from tim e to time. There are many industries that work this
way. A particular example is the contract security services and contract
cleaning services sector s. The second is that a particular anomaly pertaining
to a particular employer can be addressed by way of an exemption . The case
in casu is an example in point. In the end, wage differentiation between
employers in a particular sector is not per se a prohibited thing. But what is
not allowed is wage differentiation that translates into a substantial disparity
that could impact on the continued viability of an employer due to
compromising its ability to fairly compete. In short , things are not as simple
and straight forward as NUMSA and TOWU suggest , when it comes to the
institution of s ectoral collective bargaining .
[107] NUMSA and TOWU further argue that granting an exemption will set a
precedent that every employer paying above minimum likewise qualifies for
an exemption . I have to some extent dealt with this kind of argument already,
earlier in this judgment. But a specific point must be made. As appears to the
case with sev eral of the arguments raised by NUMS A and TOWU, it starts at
the correct point, but then does not continue far enough to reach the logical
and proper conclusion. Yes, it may well be that because of granting an
exemption in ca su, any other employer in the industry paying above minimum
wage can then seize the opportunity and come and ask for exemption . But
what the argument ignores is that no matter what, any employer can always
ask for exemption , and the real question each time is whet her the employer
asking for it deserves it. Deserving an exemption where i t comes to wage s in
particular is far more than an employer just paying more than minimum wage
and thus being entitled to back down to minimum wage . The employer must
prove, on the particula r facts of a particular case, that a significant inequity
exists as a result of paying more than minimum wage that could reasonably
compromise the continued viability of the employer. This is a significant hurdle
to cross. The argument raised by NUMSA and TOWU is unduly short sighted ,
and ignores the realities of what an exemption application would be.
[108] The facts in casu illustrate th e point I have made above . What one has in this
particular instance is what can be described as a perfect storm of quite unique
factors which led to the need for exemption. First, the industry was limited,
long established, with a handful of competitors not really competing on the
basis of wages, and with these competitors being more or less market (area)
specific. In this context, even a disparity of wages would not cause much risk
to continued viability . Second, a material shift in policy took place, in terms of
which greater competition in the industry was prescribed, with the principal
customers of GABS being the kind of customers that are compelled to give
effect to these policy changes. The upshot of these policy changes is a
significant introduction of new competitors into GA BS’s very marketplace.
Third, the new competitors come in at minimum wage, under circumstances
where the City has made it clear that it will only negotiate / contract for
business based on minimum wage. Fourth, the historical context meant that
the prescribed wages being paid by GABS was substantially more than
minimum wage. Fifth, the wage costs comprise 53% of GABS’s operating
costs, with fuel costs being fixed as a further 25% of operating costs. This
makes it impossible for GABS to effectively take alternative me asures to
otherwise reduce costs to make it more competitive . The situation is
exacerbated by infrastructural support being given to the new competitors by
the City, removing this as a possible basis to level the playing field. Sixth, it is
undeniable that this new structure for the industry will be rolled out in the
foreseeable future. And finally, on the facts, the disparity in wages means that
GABS is unable to fairly compete with these new competitors, placing the
continued viability of its business at material risk. It must surely be patently
apparent that such a culmination of factors is not an everyday occurrence,
and ca n be described as rare and being special circumstances . It is
impossible that granting exemption in such a case could create some undue
precedent.
[109] NUMSA and TOWU give some exposition of how the employees would be
prejudiced by the exemption. I accept that prejudice to the employees would
result from exemption . But what must be considered is that losing jobs as a
result of retrenchment emanating from GABS losing a significant position of its
business must be worse. And then, the attenuated nature of the exemption
sought by GABS cannot be ignored. At the very le ast, the nature of this
exemption would maintain wages of the employees, as increases will simply
be limited, with no actual wage reductions being proposed. It can hardly de
said, in these circumstances , as NUMSA and TOWU argue, that ‘… the
exemption grave ly harms employees' ability to maintain their standard of living
…’ Even if a balance of prejudice is applied, I am comfortable in saying that in
this instance, the balance favours GABS.
[110] For all the reasons as set out above, the review application by NU MSA and
TOWU must fail. For once, the panellist properly appreciated the legal
principles and case at h and. She properly applied the facts to this case, and
came to a conclusion that was rational , reasonabl e and supported by the
facts. The decision of panellist De Wet is therefore unassailable on review,
and must be upheld. It follows that the review applic ation by NUMSA and
TOWU must be dismissed.
The remedy
[111] Considering that the three review applications brought by GABS have
succeeded, where to now? Both parties ask that the exemption appeal
decisions be substituted with a decision by this Court, rather than remitting
these appeals back to the SARPBC for determination de novo .
[112] In terms of section 145(4) of the LRA, this Court is entitled, once an arbitration
award is reviewed and set aside, ‘… to determine the dispute in the manner it
considers appropriate ’. It is of course true that section 145(4) relates to
arbitration award s issued by arbitrators of the CCMA, which is sought to be
reviewed under section 145 of the LRA. The case in casu is a review
application under section 158(1)(g), and thus section 145(4) does not directly
apply. However, and in my view, there is no reason why section 145(4) cannot
apply to review applications under section 158(1)(g) of the LRA , which an
approach that has also been followed in other judgments .65
[113] I find support for the view that I have expressed above in the judgment of the
Constitutional Court in National Union of Metalworkers of SA v Commission
for Conciliation, Mediation and Arbitration and Others66. That case concerned
a demarcation award made by a CCMA arbitrator under section 62 of the
LRA. There are many similarities between the kind of decision made by an
arbitrator in a demarcation case, and the decision made by a barga ining
council in an exemption application . In a demarcation case, one of the
questions an arbitrator would decide is whet her the business of a particular
employer is bound by a main collective agreement of a bargaining council , on
the basis that the busine ss of the employer , as determined on the fact s, would
resort under its scope and jurisdiction . In an exemption , the decision would be
whet her a particular provision in the bargaining council main agreement would
apply to a particular employer, based on certain criteria also substantiated by
the facts. In National Union of Metalworkers the Court accepted that the
power of the Labour Court to review demarcation arbitration awards is
sourced from s ection 158(1)(g) of the LRA .67 Having so found, the Court then
held as follows as to the application of section 145(4):68
65 See Uber SA Technology Services (P ty) Ltd v National Union of Public Service and Allied Workers
(2018) 39 ILJ 903 (LC) at para 100.
66 (2022) 43 ILJ 530 (CC) .
67 Id at para 57.
68 Id at para 62 .
‘Section 145(4) (a) provides that if an arbitration award is set aside the
Labour Court may determine the dispute in the manner it considers
appropriate. That expressly gives the Labour Court wide powers that
include substituting its decision for that of a CCMA
commissioner. There is no specific or implied exception or exemption in
s 145(4) for demarcation awards that limit the Labour Court’s powers in
respect of such awards. Legal scholars support this interpretation. …’
[114] The next question is wheth er it can be said that there is anything in the
exemption process under the SAPBC main collective agreements that
specifically dedicate and preserve exemption decisions only for the SARPBC
(assuming this is even possible, which I have my doubts about). The simple
answer is that there are none. There is nothing in the main collective
agreements that indicate that this Court, having reviewed and set aside a
decision of the SARPBC, is not able to substitute that decision with a decision
of the Court itself. A similar analysis was conducted by the Court in National
Union of Metalworkers supra pertaining to what was contained in the
demarcation prov isions under section 62 of the LRA , and the Court held:69
‘There is therefore no merit in NUMSA’s contention that the Labour
Court lacked the power to substitute the CCMA’s decision for that of its
own. Substitution, by definition, entails a court taking a decision that
has been assigned to a specific functionary. Courts describe
substitution as ‘tak[ing] the decision for the administrative decision -
maker’ and the substituting court as ‘assum[ing] an administrative
decision -making function’. The ess ence of substitution is therefore the
taking of a decision that in the ordinary course would be taken by a
different decision maker. Although s 62 clearly contemplates
that demarcation is firmly within the rarified realm of the CCMA and
specialist commissi oners, it does not follow that substitution is not
competent. ’
69 Id at para 6 6
[115] In the end, I believe that any Labour Court judge is generally as well -placed
and competent as any CCMA or bargaining council decision -maker to
determine a dispute falling within the ambit of the LRA. This would include an
exemption decision made in the SARPBC , which would qualify as such a
dispute . This was recognized in National Union of Metalworkers supra .70 In
casu , therefore, substitution as prayed for b y the parties would be competent.
[116] So, since this Court is competent and able to substitute its own decision for
the decisions of the appeal panellists in the SARPBC , how is this exercise to
be conducted? Again , the Court in National Union of Metalworkers supra
provides an answe r, where the Court held:71
‘… Whilst the Labour Court enjoys a wide discretion to determine the
dispute in the manner it considers appropriate, this does not mean that
it should readily substitute its decision for that of the commissioner.
Concerns relating to the doctrine of separatio n of powers are acute,
because of the danger of courts usurping powers assigned to a
different sphere of government, and the Labour Court should exercise a
measure of judicial deference, and only substitute decisions in
exceptional circumstances. The Labou r Court is restricted to the
grounds of review in s 145 of the LRA and the remedies permitted
within its powers in s 158 of the LRA. However, judicial deference
should not be interpreted to mean that the Labour Court does not have
the power to substitute demarcation arbitration awards.
This court had occasion to consider the test for exceptional
circumstances in Trencon ,72 where it held: ‘To my mind, given the
doctrine of separation of powers, in conducting this enquiry there are
certain factors that should inevitably hold greater weight. The first is
whether a court is in as good a position as the administrator to make
70 Id at paras 64 – 65.
71 Id at para s 67 – 68.
72 The Court was referring to Trencon Construction (Pty) Ltd v Industrial Development Corporation of
SA Ltd and A nother 2015 (5) SA 245 (CC) .
the decision. The second is whether the decision of an administrator is
a foregone conclusion. These two factors must be considered
cumulatively. Thereafter, a court should still consider other relevant
factors. These may include delay, bias or the incompetence of an
administrator. The ultimate consideration is whether a substitution order
is just and equitable. This will involve a consi deration of fairness to all
implicated parties. It is prudent to emphasise that the exceptional
circumstances enquiry requires an examination of each matter on a
case -by-case basis that accounts for all relevant facts and
circumstances.’73
[117] In Palluci Home Depot (Pty) Ltd v Herskowitz and Others74, the L abour
Appeal Court set out the approach to be applied when deciding whether to
remit or substitute , as follows :
‘Where all the facts required to make a determination on the disputed
issues are before a reviewing court in an unfair dismissal or unfair
labour practice dispute such that the court is "in as good a position" as
the administrative tribunal to make the determination, I see no reason
why a reviewing court should not decide the matter itself Such an
approach is consistent with the powers of the Labour Court under s 158
of the LRA, which are primarily directed at remedying a wrong, and
providing the effective and speedy resolution of disputes. The need for
bringing a speedy finality to a labour dis pute is thus an important
consideration in the determination by a court of review of whether to
remit the matter to the CCMA for reconsideration, or substitute its own
decision for that of the commissioner. Thus, where the issues are
largely common cause, the pleadings comprehensive, the full record of
both the disciplinary and arbitration proceedings are before the court,
73 The Court did dispense this warning at para 69: ‘…There are guidelines in place for courts to
consider before they exercise the discretion to substitute or not. Moreover, courts will only substitute
in exceptional circumstances. Because the demarcation decision is so polycentric and policy laden,
substitu tion will rarely be appropriate and courts will rarely be in as good a position as the
commissioner to take a demarcation decision …’.
74 (2015) 36 ILJ 1511 (LAC) at para 58.
and there has been a elapse of almost 20 months from the date of
dismissal to the date of finalisation of the review G application, su ch
as in this case, the consideration of bringing the dispute to a speedy
finality would certainly have a bearing on the decision of the reviewing
court to decide the dispute, and not remit it to the CCMA, because it is
'in as good a position' as the CCMA to do so …’
[118] In Putco supra , the Court specifically dealt with the appropriate remedy to be
afforded where an exemption decision of the SARPBC had been reviewed
and set aside , and held:75
‘… the applicant submits that the present case is exceptional in that the
same issue has been considered four times by the same authorities
and that given the outcome in each instance, they have no faith in
those authorities to afford them a fair hearing. This court is inclined to
substitute the decision maker’s finding for one that is appropriate after
considering whether the result is a foregone conclusion, any prejudice
that would be caused to the applicant by further delay, whether the
decision maker has exhibited bias and whether the court is in as good a
position to make the decision itself. In this court, the statutory
imperative of expeditious dispute resolution is a primary factor in the
exercise of the discretion to remit or substitute. … Expedited fin ality is
thus an important consideration in the determination of whether to remit
the matter for reconsideration, or to substitute …’
[119] Where a decision is made on the basis of flawed reasoning, or an error of law,
there is similarly no point to remit the m atter back for determination de novo ,
where the facts remain the same.76
[120] Applying the aforesaid in casu , it is my view that it would be appropriate to
substitute the decision s of this Court for the decisions of the three exemption
75 Id at para 36.
76 See Rustenburg Platinum Mines Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (2007) 28 ILJ 417 (LC) at para 28.
appeal panels in the SARPBC that have been reviewed and set aside. All the
facts in all three the matters were basically the same, and contained in a
substantial and compete record, spanning thousands of pages, which I have
fully considered. Based on this evidence, I believe that I am in as good a
position as any exemption appeal panel at the SARPBC to decide the
exemptions. My decisions would be based on same evidence and arguments
that was before the various panellists . And lastly, t his would the exact same
evidence and arguments that will again feature before any reconvened
exemption appeal panel at the SARPBC, meaning it would simply be
counterproductive and entirely unnecessary to go thro ugh this whole exercise
all over again. It is in any event now high time to bring this entire matter to a
conclusion, once and for all , considering the requirement of the expeditious
resolution of employment disputes . And considering the purpose the
exempt ions seek to serve, it may well render the same valueless if this case
must be decided from scratch, all over again , delaying its conclusion even
further . GABS has explicitly said that it has no faith in the exemption
authorit ies at the SARPBC rationally and reasonably deciding the matters,
and considering what had happened in the past, this view seems justified.
One can also not ignore the current wishes of the parties in this context ,
expressed above. All considered , it would be just and equitable to substitute
the decision of the three appeal exemption panels, by an order granting the
exemptions sought by GABS , on the terms set out in the order below .77
Costs
[121] GABS has asked for an award of costs, in the event that it is successful. In
terms of section 162(1) of the LRA, I have a wide discretion where it comes to
the issue of costs. In Union for Police Security and Corrections Organisation v
SA Custodial Managem ent (Pty) Ltd and Others78 the Court said:
77 Compare National Union of Metalworkers (supra ) at paras 70 – 71; Uber (supra ) at paras 101 –
102; Malapalane v Glencore Operations SA (Pty) Ltd (Goedgevonden Colliery) and Others (2018) 39
ILJ 2467 (LAC) at paras 21 – 22; Putco (supra ) at para 37; Ally (supra ) at paras 46 – 47.
78 (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of KwaZulu -Natal
and Others (2018) 39 ILJ 523 (CC) at para 24; Booi v Amathole District Municipality and Others
(2022) 43 ILJ 91 (CC) at para 60.
‘In the labour context, the judicial exercise of a court’s discretion to
award costs requires, at the very least, that the court must do two
things. First, it must give reasons for doing so and must account for its
departure from the ordinary rule that costs should not be
ordered. Second, it must apply its mind to the dictates of the fairness
standard in s 162, and the constitutional and statutory imperatives that
underpin it …’
[122] Applying the aforesai d dictum in SA Custodial Management , it is my view that
this is not a case that justifies a departure from the ordinary principle that
costs do not follow the result. In casu , I do not believe any of the parties acted
unreasonably in bringing th e application s, or in opposing the same. I also
consider that as a result of the applications , I have been afforded the
opportunity to finally decide this matter. The manner in which the parties
conducted themselves in the litigation was exemplary, and both parties were
of assistance to this Court to enable me to effectively decide this matter. This
was certainly a case that called for the attention of this Court. Also, and
considering that GABS and NUMSA / T OWU must still maintain a workable
relationship going forward, it would be unfair to mulch any party with a costs
award.79 All considered, I believe that it would be just and equitable that no
costs order be made, in any of the applications.
Order
[123] In the premises, I make the following order s:
Under case number C 688 / 21
1. The exemption appeal ruling , issued by the second, third and fourth
respondents on 16 October 2021 (the Ruling) , in terms of which the
applicant's appeal against the refusal of its exemption application from
79 Compare National Union of Metalworkers (supra ) at para 77.
certain terms of the first respondent's 2018 – 2019 main collective
agreement (the 2018 agreement) was dismissed, is reviewed and set
aside.
2. The Ruling is substituted with a ruling upholding the exemption appeal
and granting an exemption to the applicant , for the period 1 April 2019
to 31 March 2020, in the following terms:
2.1 With effect from 1 April 2019, and in respect of all drivers (i.e.
'driver -conductors' under the 2018 agreement ) employed by the
applicant , except those who commenced employment with it on
or after 1 April 2018 :
2.1.1 The applicant is exempted from the provisions of clause
3.4 of the 2018 agreement, in that the across -the-board
increase of 8% (eight percent) on their base rate of pay
as at 31 March 2019 will not be applied , and instead the
applicant will pay the greater of:
2.1.1.1 an across -the-board increase of R 183.51 per week
for the period 1 April 2019 to 31 March 2020 (being
the Rand equivalent of 8% (eight percent) of the
minimum weekly rate of R2 293.92); or
2.1.1.2 an increase equivalent to the Consumer Price Index
as at 1 April 2019 .
3. For the avoidance of doubt, it is confirmed that drivers who
commenced employment with the applicant on or after 1 April 2018 will
receive the full across -the-board increase of 8% (eight percent) on their
base rate of pay as at 31 March 2019, as provided f or in clause 3.4 of
the 2018 agreement .
4. The applicant is exempted from the provisions of clause 30 of the 2018
MCA, in that:
4.1 With effect from 1 April 2018, the applicant is not required to
increase the minimum wage thresholds applicable to its drivers
in their first to sixth years of service (the existing notches'); and
4.2 With effect from 1 April 2019, the applicant is not required to
apply the existing notches to its drivers .
5. There is no order as to costs .
Under case number C 313 / 21
1. The exemption appeal ruling issued by the second and third
respondents on 30 April 2021 (the Ruling) , in terms of which the
applicants' appeal against the refusal of their application for exemption
from certain terms of the first respondent's 2020 main collecti ve
agreement (the 2020 agreement) was dismissed, is reviewed and set
aside .
2. The Ruling is substituted with a ruling upholding the exemption appeal
and granting an exemption to the applicants, for the period 1 April 2020
to 31 March 2021, in the following terms
2.1 The exemption shall apply only in respect of the following
employees (the affected employees):
2.1.1 All of the applicants' employees who are employed in the
following job categories :
2.1.1.1 driver -conductor;
2.1.1.2 maintenance assistant ;
2.1.1.3 ticket seller ;
2.1.1.4 stores driver ;
2.1.1.5 maintenance technician;
2.1.1.6 shunter driver;
and
2.1.2 whose actual wages as at 31 March 2020 were higher
than the minimum wage prescribed for his or her
respective job category under the first respondent’s main
collective agreement concluded by the parties to the first
respondent on or about 21 May 2018 (the 2018
agreement) in respect of the period from 1 April 2019 to
31 March 2020 ( the 31 March 2020 minimum rates).
2.2 The applicants are exempted from applying the 6 % (six
percent ) across -the-board increase, prescribed in the 2020
agreement , to the affected employees' actual wage rates as at
31 March 2020 .
2.3 The applicants will apply, in respect of each of the affected
employee s, the greater of either:
2.3.1 an across -the-board increase to the affected employees
equal to 6% (six percent ) of the 31 March 2020 minimum
rates , namely the following amounts :
2.3.1.1 Driver -conductors: R148.65 per week ;
2.3.1.2 Maintenance Assistants: R137.20 per week ;
2.3.1.3 Ticket Sellers: R131.47 per week ;
2.3.1.4 Stores Drivers: R97.15 per week ;
2.3.1.5 Maintenance Technicians :
(a) R149.11 per week (for those on a 44-hour week);
and
(b) R152.50 per week (for those on a 45-hour week );
2.3.1.6 Shunter Drivers: R102,99 per week;
or
2.3.2 an increase equivalent to the Consumer Price Index as at
1 April 2020 .
3. The applicants are exempted from the provision in the last clause of the
2020 agreement , to the effect that the ‘Status quo will apply for all other
items ’ and, to the extent that it is incorporated into the 2020 agreement ,
clause 30 of the 2018 agreement , in that, for the period 1 April 2020 to
31 March 2021, the applicants are not required to increase the
minimum wage thresholds applicable to their employees in their first to
sixth or seventh (as the case may be) years of service nor to apply the
previous notches to their employees.
4. There is no order as to costs .
Under case number C 93 / 22
1. The exemption appeal ruling issued by the second respondent on 20
January 2022 (the Ruling) , in terms of which the applicants' appeal
against the refusal of their application for exemption from certain terms
of the first respondent's 2021 main collective agreement (the 2021
agreement) w as dismissed, is reviewed and set aside .
2. The Ruling is substituted with a ruling upholding the exemption appeal
and granting an exemption to the applicants in the following terms :
2.1 The exemptions shall apply only in respect of the following
employees who are employed in the following job categories
(the affected employees ):
2.1.1.1 driver -conductor;
2.1.1.2 maintenance assistant ;
2.1.1.3 ticket seller ;
2.1.1.4 stores driver ;
2.1.1.5 maintenance technician;
and
2.1.2 whose actual wages as at 27 June 2021 were higher than the
minimum wage prescribed for his or her respective job category
under the first respondent’s main collective agreement
concluded by the parties to the first respondent o n or about 25
March 2020 (the 2020 agreement) , alternatively for the period
from 1 April 2020 to 31 March 2021 ( the 27 June 2021 minimum
rates).
2.2 The applicants are exempted from applying the 4 % (four
percent ) across -the-board increase, prescribed in the 2021
agreement , to the affected employees' actual wage rates as at
27 June 2021 .
2.3 The applicants will apply an across -the-board i ncrease to the
affected employees equal to 4% (four percent ) of the 27 June
2021 minimum rates, namely the following amounts
2.3.1 Driver -conductors: R105.04 per week ;
2.3.2 Maintenance Assistants: R96.96 per week ;
2.3.3 Ticket Sellers: R92.91 per week ;
2.3.4 Stores Drivers: R68.42 per week ;
2.3.5 Maintenance Technicians :
(a) R105.37 per week (for those on a 44-hour week); and
(b) R107. 77 per week (for those on a 45-hour week) .
2.4 All employees employed in the above -mentioned job categories
who commence(d) employment with the applicants on or after
28 June 2021 will receive the minimum wage prescribed for
their respective job categor ies under the 2021 agreement ,
namely the relevant minimum rate applicable to the applicants
as at 27 June 2021 under the 2020 agreement , increased by
4% (four percent ).
2.5 the applicants are exempted from clause 31 of the 2021
agreement in that, for the period 28 June 2021 to 31 March
2022, the applicants are not required to increase the minimum
wage thresholds applicable to their employees in their first to
sixth or seventh (as the case may be) years of service, nor to
apply the previous notches to their employees.
3. There is no order as to costs.
Under case number C 684 / 22
1. The applicants ’ review application is dismissed.
2. There is no order as to costs.
_____________________
S Snyman
Acting Judge of the Labour Court of South Africa
Appearances :
For GABS : Adv A J Freund SC together with Advocate G A
Leslie SC
Instructed by: ENS Africa
For NUMSA and TOWU : Advocate S Harvey
Instructed by: Cheadle Thompson & Haysom Inc Attorneys