THE LABOUR COURT OF SOUTH AFRICA,
HELD AT JOHANNESBURG
Reportable
Case No: 2025-173974
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (NUMSA) obo MEMBERS
Applicant
And
ARCELORMITTAL SOUTH AFRICA LTD Respondent
Date heard: 8 October 2025
Date of judgment: 30 October 2025
Summary: urgent application in terms of section 189A (13) of the LRA –
employer directed to resume consultation and to reinstate affected
employees pending compliance with a fair procedure
JUDGMENT
HARVEY AJ
Page 2
On 27 October 2025 the Court made the following Order, stating that its
reasons would follow.
Order
[1] The application is heard as one of urgency.
[2] The preliminary point of non-joinder is dismissed.
[3] The respondent is directed to comply with a fair procedure by resuming
consultations pursuant to the section 189(3) notice issued on 8 January
2025 (‘the Notice’).
[4] The respondent is interdicted and restrained from dismissing any
employee at its operations in Newcastle and Vereeniging pursuant to the
Notice, and is directed to reinstate all employees whose employment at its
operations in Newcastle and Vereeniging was terminated pursuant to the
Notice, pending its compliance with a fair procedure as contemplated in
paragraph [3] of this Order.
[5] The parties are directed to resume the consultations contemplated in
paragraph [3] of this Order within ten calendar days of the date of this
Order.
[6] There is no order as to costs.
The reasons are as follows:
Introduction
[1] ArcelorMittal South Africa Ltd (AMSA) is the country’s primary steel
producer and the core of what remains of our domestic steel industry. In
January 2025 AMSA issued a notice under section 189(3) of the Labour
Relations Act signalling its intention to wind down its Longs business at
Newcastle and Vereeniging. The decision followed a year of engagement
with government, industry associations, trade unions and other
stakeholders about the declining viability of the Longs business and the
broader economic and social impact of closure.
Page 3
[2] Formal retrenchment consultations were facilitated by the CCMA, and the
statutory process concluded on 14 March 2025. Two weeks later the
company announced rescue measures to preserve the Longs operations,
suspended the section 189A process, and deferred the wind- down for six
months.
[3] NUMSA now applies urgently in terms of section 189A(13) on behalf of
affected employees who have received termination notices. The issue is
whether AMSA may simply resume the retrenchment process where it left
off, or whether developments during the six -month deferral period were of
a kind that gave rise to a duty of renewed consultation under section
189A.
[4] Before turning to that question, it is necessary to consider the preliminary
issues of urgency and non-joinder raised by AMSA.
Urgency
[5] This matter was enrolled and heard as one of urgency in terms of section
189A(17) of the Labour Relations Act 66 of 1995. NUMSA launched the
application within 30 days of AMSA issuing the first dismissal notices, as is
required by that provision.
[6] AMSA argued that the application was not urgent, as, in its view, NUMSA
ought to have brought any procedural fairness challenge when the
facilitated consultation concluded on 14 March 2025. AMSA submitted
that the union further delayed unreasonably in September 2025, once it
learned of the intention to proceed with dismissals, such that by the time
the application was launched, wind-down had already commenced.
[7] Section 189A(13) establishes a self -contained remedy for procedural
unfairness in large- scale retrenchments. As the Constitutional Court
explained in Solidarity on behalf of Members v Barloworld Equipment
Southern Africa & others
1 it is the only mechanism through which
employees may challenge failure to follow a fair procedure in such cases
1 Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022) 43
ILJ 1757 (CC).
Page 4
because the Labour Court ‘ is barred from determining the procedural
fairness of a dismissal based on operational requirements when it is
approached under s191(5)(b)(ii)’. 2 Once the opportunity to invoke section
189A(13) has passed, procedural fairness cannot be revisited in
subsequent proceedings - only the substantive fairness of the dismissals
may then be challenged. The section therefore creates a bespoke, time-
sensitive remedy designed for judicial supervision before workers are
dismissed, or within a very short timeframe after dismissal , so that
procedural defects can be corrected while the employment relationship
remains capable of restoration. As there is no alternative remedy ,
applications brought under this provision are inevitably determined as a
matter of urgency.3
[8] I am not persuaded that NUMSA had any reason to challenge procedural
fairness in March 2025. Its complaint that AMSA is not following a fair
procedure is based on what it says are materially changed circumstances
which arose in the six months after 31 March 2025, when AMSA
suspended the s ection 189 process and deferred its decision to wind -
down the Longs business.
[9] As to events in September 2025, the evidence shows that the union was
formally notified on 10 September 2025 of AMSA’s intention to proceed
with dismissals in reliance on the January section 189(3) notice. At a
facilitation on 12 September 2025 concerning a related retrenchment,
NUMSA advised AMSA that it could not lawfully proceed with these
dismissals on the basis of the 8 January 2025 notice, and AMSA
undertook to respond by 19 September 2025. NUMSA then learned that
notices of termination dated 10 September 2025 had been issued to some
of its members at Newcastle. In a letter dated 15 September 2025 NUMSA
protested that these dismissals were contrary to the parties’ understanding
that dismissals would not proceed pending AMSA's response, and
demanded that the notices be withdrawn by 17 September 2025, failing
demanded that the notices be withdrawn by 17 September 2025, failing
2 Ibid at [71].
3 See National Union of Mineworkers v Anglo American Platinum Ltd & others (2014) 35 ILJ
1024 (LC) (NUM) at [19].
Page 5
which it would approach this Court on an urgent basis. AMSA declined to
withdraw the notices in its written response of Friday 19 September 2025,
and NUMSA filed this application the following Thursday, 25 September
2025.
[10] I am satisfied:
10.1 that applications in terms of s ection 189A(13) brought within 30 days
of dismissal notices are by their nature urgent because there is no
alternative remedy and the statute intends that they be determined
on an urgent basis; and
10.2 that NUMSA acted with the necessary expedition.
[11] The application was accordingly treated as urgent.
Non-joinder
[12] The employer objected that the application was defective for failure to join
Solidarity, non-unionised employees, and AMRAS employees affected by
the retrenchment process.
[13] That objection cannot be upheld . Section 189A(13) confers standing on
‘any consulting party’ to bring an application to secure compliance with fair
procedure, and the various forms of relief it contemplates do not finally
determine or prejudice the substantive rights of other consulting parties.
[14] The preliminary point of non-joinder is dismissed.
Facts
Numsa’s version
[15] NUMSA’s case, as set out in the founding affidavit, is that AMSA issued a
section 189A notice on 8 January 2025 signalling its intention to wind
down its ‘Longs’ business at Newcastle and Vereeniging. The notice
attributed contemplated retrenchments to a combination of factors
including the slow economy and difficult trading conditions, national
constraints including logistics and electricity challenges, the impact of steel
Page 6
imports, and the scrap- pricing system. Approximately 2, 200 employees
were identified as potentially affected.
[16] Facilitated consultations were held in Newcastle under CCMA case H04-
25 before three CCMA commissioners. Four meetings were held, and the
commissioners were authorised to convene a fifth meeting on 14 March
2025. NUMSA’s General Secretary says its principal focus in these
consultations was to explore alternatives to dismissal. AMSA having
declined to extend the 60- day consultation period, the formal facilitation
terminated on 14 March, although AMSA stated that it remained willing to
engage outside the process.
[17] On 31 March 2025 the company’s Chief Executive Officer issued a
communication to all employees headed ‘ Deferral of Long Steel Business
Wind-Down’. It announced that the wind down had been deferred for ‘an
initial period of at least six months, until the end of August 2025’ thanks to
funding from the Industrial Development Corporation (IDC) and assistance
from the Temporary Employee Relief Scheme (TERS). The letter recorded
that, as a result , ‘ the previously announced consultation process will be
suspended for the Longs business’.
[18] The letter proceeded to describe a series of new initiatives aimed at
restoring the sustainability of the L ongs business, including a ‘ fit-for-
purpose flat product support structure’ , operational improvements, cost
reductions, and collaboration with government to address structural
challenges such as scrap-metal pricing and import protection.
[19] NUMSA contends that this communication created a legitimate
expectation that dismissals would not proceed, noting that contractors who
had issued parallel retrenchment notices to their staff also withdrew them
in light of AMSA’s announcement.
[20] On 1 April 2025 AMSA forwarded to NUMSA a Stock Exchange News
Service (SENS) announcement confirming the deferral of the wind- down
until at least 31 August 2025, enabled by IDC funding of R 1,683 billion
until at least 31 August 2025, enabled by IDC funding of R 1,683 billion
and supported by a TERS grant. The SENS notice also stated that the
section 189(3) consultation process ‘ will be suspended ’ while the
company, government, and the IDC pursued structural and operational
Page 7
interventions to place the L ongs business on a sustainable footing.
NUMSA relies on this as further confirmation that the s ection 189 process
initiated on 8 January 2025 was not concluded but rather suspended
pending the outcome of new measures aimed at restoring the business to
viability.
[21] NUMSA points to external developments affecting the rationale for
retrenchment which arose after 31 March 2025, including finalisation of the
IDC due diligence review and media reports that talks were underway
concerning the proposed acquisition of the Longs business for R8.5 billion,
NERSA’s approval of AMSA’s application for a reduced electricity tariff at
its Newcastle and Vanderbijlpark plants (an intervention the union says
was likely motivated by the imperative to preserve jobs), and the impact of
the efficiency initiatives announced by the employer when wind-down was
deferred. It contends that t hese developments were material to the
consultation process , as they raised possible viable alternatives to total
closure and/or the potential for continued engagement to preserve jobs or
change the timing or extent of dismissals.
[22] It is undisputed that no consultations have taken place between the
consulting parties concerning the possible impact of these developments
on the proposed retrenchments since the section 189(3) process was
suspended at the end of March 2025.
[23] On 10 September 2025, AMSA wrote a letter with subject -line
‘retrenchment rules’ to NUMSA’s Regional Secretary. The letter stated that
the consultation process arising from the 8 January s ection 189(3) notice
had been finalised on 14 March, but that retrenchments had been
‘postponed’ on 31 March 2025. As no alternatives to minimise or avoid
retrenchments had been found, the company would ‘commence
termination of employees’ employment in accordance with the principles
set out below’: severance pay would be calculated ‘in accordance with the
set out below’: severance pay would be calculated ‘in accordance with the
collective agreement’ and would be staggered over several months, and
employees might be transferred to other business units (coupled with a
warning that those refusing reasonable offers of alternative employment
would forfeit severance pay).
Page 8
[24] NUMSA rejected the employer’s position and pointed out that these were
fundamentally new decisions taken in changed circumstances. At a 12
September 2025 facilitat ion tasked with a separate ( Vanderbijlpark)
section 189 consultation (CCMA case H086-25) the union urged AMSA to
suspend dismissals at the Longs business and to consolidate all
retrenchment consultations into a single process. AMSA undertook to
respond by 19 September 2025, but in the interim issued termination
letters to employees at Newcastle, i n some instances giving notice of
termination effective as early as 9 October 2025.
[25] NUMSA wrote on 15 September demanding written confirmation by 17
September that all dismissal notices had been withdrawn. AMSA rejected
the demand on 19 September, citing the absence of further funding and
asserting that NUMSA had taken no meaningful steps since early
September. Unlike in its earlier notice, AMSA now proposed to close the
Newcastle and Vereeniging operations entirely, including the coke- making
facility at Newcastle, rather than placing them under care and
maintenance.
[26] NUMSA launched the present application on 25 September 2025, within
30 days of the first batch of termination notices (as is required by section
189A(17) of the LRA) . It asserts a clear right to proper consultation on all
matters contemplated in section 189(2) -(4), including selection criteria,
severance pay, alternatives to retrenchment, and transfers. It argues that
AMSA’s conduct deprived employees of a meaningful opportunity to
engage on numerous issues arising after 14 March, including:
26.1 the decision to implement a complete shutdown ( rather than putting
Longs into care-and-maintenance);
26.2 the closure of the Newcastle coke plant;
26.3 the impact of the reduced electricity tariff now approved by NERSA;
26.4 the effect of operational improvements implemented under the March
deferral plan;
26.5 the outcome of government’s promised interventions on scrap pricing
and imports;
Page 9
26.6 the progress of AMSA’s stated cost-reduction programme;
26.7 efforts to regain market share and restore key skills; and
26.8 the potential sale of the L ongs business following the IDC’s due-
diligence exercise.
[27] NUMSA contends that these were new and material developments
requiring renewed consultation, and that by proceeding to dismiss its
members without engaging on their potential effect AMSA acted in breach
of its statutory obligations. The union maintains that its members face
irreparable harm if deprived of that opportunity, as viable alternatives to
closure may still exist. It points out i n addition that, should ( what looks
like) an imminent IDC purchase bid succeed, dismissed NUMSA
members’ rights to transfer their employment to the new employer under
s197 would be extinguished.
AMSA’s version
[28] AMSA’s position is that there was no procedural unfairness , because
consultations on the retrenchment of employees in the L ongs business
were properly concluded under the facilitation process in March 2025, and
that the circumstances since then have not materially changed.
[29] AMSA states that it was only able to defer the planned wind- down of the
Longs business because of the funding provided by the IDC between 1
April and 31 August 2025. The deferral period was a temporary measure
to facilitate due diligence and to explore alternative rescue plans. When
no viable solution emerged, it had no choice but to proceed with the wind-
down.
[30] AMSA stresses that no retrenchments have yet taken place in its flats or
coke-battery operations at Vanderbijlpark or in the coke operations at
Newcastle, where consultations are ongoing pursuant to the January 189A
notice. This application, it says, concerns only NUMSA’s members
retrenched in the Longs business and corporate office.
[31] AMSA describes the background to the restructuring as long- running and
industry-wide. The L ongs business produces rebar, rods and other long-
Page 10
steel products for the mining and construction sectors. The Flats Business,
located mainly at Vanderbijlpark, produces hot -rolled coil and other flat
products for the automotive market. AMSA explains that the global steel
industry has for some time faced difficult trading conditions, compounded
in South Africa by national constraints: excessive electricity tariffs,
unreliable rail and port logistics, high transport costs, and unfair
competition from imported steel and scrap- based producers benefiting
from a preferential pricing system and export taxes.
[32] AMSA explains that these structural impediments have for some time
rendered the L ongs business unsustainable. From as early as November
2023 the company publicly contemplated closure, and through 2024 and
early 2025 it engaged extensively with government, industry associations
and organised labour to explore solutions. It says that, during the
facilitated consultation process held between January and March 2025,
the parties agreed that the only possible alternatives to closure were
external interventions: TERS funding, IDC facilitation of a buyer, or direct
government support. These were all canvassed in detail, and NUMSA
itself made representations to the IDC and to government.
[33] AMSA refers the Court to the transcripts of the facilitated meetings which
reflect these discussions. Those consultations encompassed the business
rationale, alternatives to retrenchment, severance packages, transfers,
and selection criteria. The employer refers to a proposed agreement
tabled at the 5th facilitation meeting on 14 March 2025, which addressed
transfers, vacancies, a moratorium on recruitment, relocation policy,
voluntary severance, and related matters. It complains that NUMSA’s
contention that such matters were not consulted on is untrue, and that
NUMSA agreed that such matters would be governed by the terms of the
existing recognition agreement.
[34] The company emphasises that during facilitation the parties reached
[34] The company emphasises that during facilitation the parties reached
broad consensus on the commercial rationale for the shutdown, and that
the terms ‘ shutdown’ and ‘care and maintenance’ were used
interchangeably in the discussions. NUMSA, it says, understood and
accepted that the continuation of the L ongs business was dependent on
Page 11
third-party support, and that in the absence of such support the business
would close.
[35] AMSA maintains that the section 189A consultation was fully and properly
completed by mid- March 2025 and that the deferral period from April to
September 2025 was a funding- supported holding operation during which
the business case for retrenchment remained unchanged. It argues that
the subsequent developments cited by NUMSA, including the IDC due
diligence and bid, the preferential -tariff decision and efficiency initiatives,
were all anticipated during consultations and did not alter the underlying
rationale for retrenchment.
[36] Both parties accept that the Longs business faces serious and continuing
financial strain and that its survival depends on external assistance. They
differ only on whether the intervening events amounted to material
changes requiring the consultation process to be reopened.
[37] The essential issue for determination is whether the circumstances arising
after 14 March 2025 were materially different from those under which the
earlier consultations occurred, to such an extent that AMSA was obliged to
resume consultation before issuing dismissal notices. If they were, AMSA
failed to comply with a fair procedure when issuing the dismissal letters
that gave rise to this urgent application. I turn to consider t he statutory
framework governing that question, and the role of the Court under section
189A(13).
The statutory framework and the role of the Court
[38] Section 189 of the Labour Relations Act requires an employer
contemplating dismissals for operational requirements to engage in a
‘meaningful joint consensus -seeking process’ with consulting parties. The
purpose is to ensure that dismissals take place only after the affected
employees and their representatives have had a fair opportunity to
influence both the decision to retrench and the way retrenchments are
implemented.
Page 12
[39] Section 189A was enacted to strengthen this obligation in large- scale
retrenchments by providing for facilitated consultation, coupled with limited
urgent supervisory relief under sections 189A(13) and (17).
[40] Section 189A(13) of the LRA provides that:
‘If an employer does not comply with a fair procedure, a consulting party
may approach the Labour Court by way of an application for an order -
(a) compelling the employer to comply with a fair procedure;
(b) interdicting or restraining the employer from dismissing an employee
prior to complying with a fair procedure;
(c) directing the employer to reinstate an employee until it has complied
with a fair procedure;
(d) make an award of compensation, if an order in terms of paragraphs (a)
to (c) is not appropriate.’
[41] Section 189A(17)(a) of the LRA provides that:
An application brought in terms of subsection (13) must be brought not
later than 30 days after the empl oyer has given notice to terminate the
employee’s services or, if notice is not given, the date on which the
employees are dismissed.
[42] The Constitutional Court has in recent years provided detailed guidance
on the nature and purpose of the Labour Court’s powers under section
189A(13). In Steenkamp & Others v Edcon Ltd
4 the Court explained that
the section mandates for urgent intervention by this Court to address
procedural irregularities as and when they arise, to restore the integrity of
the consultation process.
5 The Court’s function is not to second-guess the
commercial rationale for restructuring, but to ensure that the statutory
procedure is honoured in substance, and not merely in form. In Solidarity
on behalf of Members v Barloworld Equipment Southern Africa & others
6
4 Steenkamp & Others v Edcon Ltd 2019 (40 ILJ 1731 (CC).
5 Ibid at [52] and [54].
6 Solidarity on behalf of Members v Barloworld Equipment Southern Africa & others (2022) 43
ILJ 1757 (CC).
Page 13
the Constitutional Court confirmed that notwithstanding that the purpose of
section 189A(13) is to cure defects before jobs are lost, it also
contemplates reinstating workers who have already been retrenched,
provided the application is launched within the short 30-day timeframe
stipulated in section 189A(17).7
[43] Against that background, it is necessary to recall the broader purpose of
these provisions within the statutory scheme. T he LRA regulates the
structural conflict of interest between workers and employers that
characterises our industrial relations system. The statutory framework
entrenches dialogue and collective agency. Where an employer
restructures to enhance profitability, the consequence is the loss of
livelihoods for employees, with wider effects on local economies. The
consultation requirement is not an act of benevolence towards workers ,
but a statutory mechanism to contain the effects of unilateral corporate
power and to ensure that it is exercised within the bounds of fairness and
accountability in a society committed to both enterprise and social justice.
The wording of section 189(2) - describing consultation as ‘ a meaningful
joint consensus-seeking process’ - reflects a deliberate legislative choice
to weave constitutional values of equality, dignity and fair labour practices
into the procedure itself, so that consultation functions as genuine
engagement rather than formality.
Evaluation
[44] The first question is whether there has been a procedural defect, because
only then will the Court’s power to intervene under section 189A(13) be
triggered.
[45] It is undisputed that the statutory 60- day facilitated consultation period
ended on 14 March 2025. Between then and September, however, when
dismissal notices were issued, the landscape changed: the completion of
the IDC due-diligence process, credible reports of a proposed R8.5 billion
IDC acquisition bid, the NERSA preferential -tariff decision, and AMSA’s
7 Ibid at [71].
Page 14
own operational-efficiency measures together create a new factual matrix
bearing directly on the timing, scope, and necessity of retrenchments.
When consultations were suspended in March, these developments had
not yet occurred; by September they had become features of the operating
environment.
[46] These changes are material and require further consultation. The most
significant change is the potential acquisition of the Longs business. In
that regard, NUMSA contends that the October 2025 dismissals
extinguishes workers’ rights to transfer under section 197 to an acquiring
employer. Renewed consultation could enable the parties to explore
measures to preserve, as far as possible, continuity of employment should
such an acquisition occur (such as an agreement that AMSA make it a
condition of sale that retrenched workers be re -employed on existing
terms). Such engagement falls squarely within the scope of section
189(3), which obliges parties to consult on ways of avoiding or minimising
retrenchments and mitigating their effects.
[47] Numsa relied on National Union of Metalworkers of SA on behalf of
Members v General Motors of SA (Pty) Ltd
8 to argue that , given the
material changes, AMSA must issue a new section 189A notice and
commence the consultation process afresh. That decision is
distinguishable. In General Motors , Van Niekerk J (as he then was) held,
on the facts, that the dismissals the employer sought to effect seven
months after issuing a section 189(3) notice were not the same dismissals
originally contemplated by that notice, and that a new consultation process
was therefore required.
[48] In this case, the dismissals now contemplated by AMSA are the same as
those foreshadowed in the January 2025 notice. Nevertheless, before
giving notice of dismissal in September 2025, AMSA was obliged to
resume consultations to assess the implications of the new developments,
because renewed engagement could reasonably have produced different
because renewed engagement could reasonably have produced different
outcomes concerning the timing of the wind- down, the number of
8 National Union of Metalworkers of SA on behalf of Members v General Motors of SA (Pty) Ltd
(2009) 30 ILJ 1861 (LC) (General Motors)
Page 15
employees affected, and the measures available to mitigate their impact.
The procedural defect lies in the employer’s failure to do so. By relying on
a process that had been suspended and overtaken by material change,
AMSA implemented dismissals on an outdated and incomplete procedural
foundation. By treating the January consultations as concluded and the
deferral period as irrelevant, the employer deprived the union of an
opportunity to engage on matters that the LRA identifies as central to
meaningful joint consensus -seeking. AMSA must therefore be ordered to
comply with a fair procedure by reinstating any workers already dismissed
and resuming consultations, as contemplated in section 189A(13)(c).
[49] The Court’s supervisory role under section 189A(13) must be exercised in
a manner that is both practical and purposive. As this Court held in
General Motors , the requirements of sections 189 and 189A are not
mechanical, nor are they intended to be mechanically applied.
9 Renewed
consultation is not ordered for its own sake, nor to compel the employer to
revisit its business rationale, but to restore the opportunity for engagement
on developments that have become materially relevant since the section
189 process was paused. The remedy is restorative rather than punitive: it
protects the integrity of consultation, ensuring that fairness is not
compromised for the sake of expedience, and returns the process to the
point where its statutory purpose can still be fulfilled.
[50] This accords with the broader purpose of consultation, which is to temper
the effects of unilateral corporate power through structured dialogue. Such
dialogue ensures that decisions with serious social and economic
consequences are taken only after a fair process of collective reasoning,
rather than being implemented unilaterally on an outdated factual premise.
Remedy and costs
[51] The Court is mindful that resuming consultations will impose cost and
Remedy and costs
[51] The Court is mindful that resuming consultations will impose cost and
disruption on the employer. However, once a procedural defect is
established, section 189A(13) obliges the Court to intervene to restore
9 General Motors at [37].
Page 16
procedural fairness. The appropriate remedy is to order the employer to
comply with a fair procedure by resuming consultations to address the
material developments that arose after 14 March 2025 and by reinstating
the affected employees until that process has been completed. This
remedy preserves the employment relationship to enable consultation to
occur meaningfully and in good faith. Renewed consultations must
commence within a short period to minimise operational prejudice while
ensuring compliance with the Act.
[52] Both parties acted in good faith in seeking to protect legitimate interests in
a matter of national economic and social significance. The dispute raised
novel questions about the scope of an employer’s duties following the
suspension of a retrenchment consultation, and the parties have an
ongoing relationship. In these circumstances, the interests of law and
fairness are best served by making no order as to costs.
Conclusion
[53] For these reasons, and applying the principles set out above, the Order
set out at the beginning of this judgment was handed down on 27 October
2025.
___________________
Harvey AJ
Acting Judge of the Labour Court of South
Africa
Appearances:
On behalf of the applicant: Minnaar Niehaus of Minnaar
Niehaus Attorneys
On behalf of the respondent: F Boda SC with I de Vos
instructed by Cliffe Dekker
Hofmeyer Inc