IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-173974
In the matter between:
NUMSA OBO MEMBERS Applicant
and
ARCELORMITTAL SOUTH AFRICA LTD Respondent
Heard: 6 November 2025
Delivered: 12 November 2025.
Summary: Section 18 of the Superior Courts Act, 2013
JUDGMENT
WHITCHER J
Nature of application
[1] On 27 October 2025, Harvey AJ made the following order:
…
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.
[2] In th e present opposed application, NUMSA seeks an order in the following
terms:
(i) The order of H arvey AJ, dated 27 October 2025, (‘the Order’) constitutes an
interlocutory order as envisaged in section 18(2) of the Superior Courts Act,
10 of 2013; and
(ii) The respondent’s application for leave to appeal , dated 27 October 2025,
does not have the effect of suspending the operation and execution of the
Order.
(iii) In the alternative to the above that the operation and execution of the Order is
not suspended pending the decision of the respondent’s application for leave
to appeal.
[3] Section 18 of the Superior Courts Act (‘the SCA’) provides as follows:
“18. Suspension of decision pending appeal
(1) Subject to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution of a decision which is
the subject of an application for leave to appeal or of an appeal, is suspended
pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of a decision that is an interlocutory
order not having the effect of a final judgment, which is the subject of an application
for leave to appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order otherwise, in addition proves on a balance of
probabilities that he or she will suffer irreparable harm if the court does not so order
and that the other party will not suffer irreparable harm if the court so orders.
and that the other party will not suffer irreparable harm if the court so orders.
Section 18(2): Nature of the Order
[4] The first issue is whether, as submitted by NUMSA, the Order constitutes an
interlocutory order not having the effect of a final judgment.
[5] Denel SOC Ltd v National Union of Metalworkers of SA on behalf of Petersen &
another1 stated:
… In Soltec CC v Swakopmund Super Spar, Masuku J stated the following about
interlocutory applications: ‘In Uvana v Steenkamp (infra), the court referred, for
definition of interlocutory, to the Black’s Law Dictionary. There, interlocutory was
defined as “interim or temporary, not constituting a final resolution of the whole
controversy”. I adopt the definition.’
[6] The Appellate Division, in Cronshaw and another v Coin Security Group (Pty)
Ltd2, held that where to draw the line between decisions which are
‘interlocutory’ and those which are ‘final’ is intrinsically difficult, but there has to
be a rule and that rule was laid down by the Pretoria Garrison case wherein
Schreiner JA stated:
…a preparatory or procedural order is a simple interlocutory order and
therefore not appealable unless it is such as to “dispose of any issue or any
portion of the issue in the main action or suit”, or which amounts, I think, to
the same thing, unless it “irreparably anticipates or precludes some of the
relief which would or might be given at the hearing”.
[7] The Supreme Court of Appeal in Government of the Republic of South Africa &
others v Von Abo3 held:
"It is fair to say that there is no checklist of requirements. Several considerations
need to be weighed up, including whether the relief granted was final in its effect,
definitive of the rights of the parties, disposed of a substantial portion of the relief
claimed, aspects of convenience, the time at which the issue is considered, delay,
expedience, prejudice, the avoidance of piecemeal appeals and the attainment of
justice."
[8] The Consti tutional Court in United Democratic Movement and another v
Lebashe Investment Group (Pty) Ltd and others4 held:
1 (2022) 43 ILJ 2303 (LC).
Lebashe Investment Group (Pty) Ltd and others4 held:
1 (2022) 43 ILJ 2303 (LC).
2 1996 (3) SA 686 (A).
3 2011 (5) SA 262 (SCA).
4 2023 (1) SA 353 (CC).
"In deciding whether an order is appealable, not only the form of the order must be
considered but also, and predominantly, its effect. Thus, an order which appears in
form to be purely interlocutory will be appealable if its effect is such that it is final
and definitive of any issue or portion thereof in the main action. By the same token,
an order which might appear, according to its form, to be finally definitive in the
above sense may, nevertheless, be purely interlocutory in effect".
[9] Sutherland DJP in K.M.R v K. R5 provides the most helpful up to date guide:
The compass of an order that is final in effect was addressed in Zweni v Minister of
Law and Order 1993 (1) SA 523 at 532J -533A:
“A 'judgment or order' is a decision which, as a general principle, has three
attributes, first, the decision must be final in effect and not susceptible of
alteration by the Court of first instance; second, it must be definitive of the
rights of the parties; and, third, it must have the effect of disposing of at least
a substantial portion of the relief claimed in the main proceedings (Van
Streepen & Germs (Pty) Ltd case supra at 586I-587B; Marsay v Dilley 1992
(3) SA 944 (A) at 962C-F)….”
To the Zweni approach must be added the refinements about supposedly interim
orders stated in City of Tshwane Metropolitan Municipality v Afriforum 2016 (6) SA
279 (CC) at [39] - [42] where the following was held:
“[39] The appealability of interim orders in terms of the common law depends
on whether they are final in effect. In this connection it must be borne in mind
that the effect of the restraining and mandatory order granted is to mortify and
prevent Council from implementing its resolution. And this is the resolution
taken in terms of its constitutional and statutory powers. To say that this
amounts to an intrusion by courts into the domain reserved exclusively for the
executive, would not be an overstatement.
[40] The common-law test for appealability has since been denuded of its
[40] The common-law test for appealability has since been denuded of its
somewhat inflexible nature. Unsurprisingly so because the common law is not
on par with but subservient to the supreme law that prescribes the interests of
justice as the only requirement to be met for the grant of leave to appeal.
Unlike before appealability no longer depends largely on whether the interim
order appealed against has final effect or is dispositive of a substantial portion
of the relief claimed in the main application. All this is now subsumed under
5 (44169/2019) [2021] ZAGPJHC 35 (18 March 2021).
the constitutional interests of justice standard. The overarching role of
interests of justice considerations has relativised the final effect of the order or
the disposition of the substantial portion of what is pending before the review
court, in determining appealability. The principle was set out in OUTA by
Moseneke DCJ in these terms:
'This court has granted leave to appeal in relation to interim orders before. It
has made it clear that the operative standard is the interests of justice. To that
end, it must have regard to and weigh carefully all germane circumstances.
Whether an interim order has a final effect or disposes of a substantial portion
of the relief sought in a pending review is a relevant and important
consideration. Yet, it is not the only or always decisive consideration. It is just
as important to assess whether the temporary restraining order has an
immediate and substantial effect, including whether the harm that flows from it
is serious, immediate, ongoing and irreparable.'
…
'A court must also be alive to and carefully consider whether the temporary
restraining order would unduly trespass upon the sole terrain of other
branches of government even before the final determination of the review
grounds. A court must be astute not to stop dead the exercise of executive or
legislative power before the exercise has been successfully and finally
impugned on review. This approach accords well with the comity the courts
owe to other branches of government, provided they act lawfully. Yet another
important consideration is whether in deciding an appeal against an interim
order, the appellate court would in effect usurp the role of the review court.
Ordinarily the appellate court should avoid anticipating the outcome of the
review except perhaps where the review has no prospects of success
whatsoever.'
[41] What the role of interests of justice is in this kind of application, again
entails the need to ensure that form never trumps any approach that would
entails the need to ensure that form never trumps any approach that would
advance the interests of justice. If appealability or the grant of leave to appeal
would best serve the interests of justice, then the appeal should be
proceeded with no matter what the pre-Constitution common-law
impediments might suggest. This is especially so where, as in this case, the
interim order should not have been granted in the first place by r eason of a
failure to meet the requirements. The Constitution and our law are all about
real justice, not mere formalities. Importantly, the constitutional prescripts of
legality and the rule of law demand that nobody, not even a court of law,
exercises powers they do not have. Where separation of powers is implicated
and forbids the grant of the order sought to be appealed against, the interests
of justice demand that even an order that is not of final effect or does not
dispose of a substantial portion of the issues in the main application,
nevertheless be appealable.
[42] Consequently, although the final effect of the interim order or the
disposition of a substantial portion of issues in the main application is not
irrelevant to the determination of appealability and the grant of leave, they are
in terms of our constitutional jurisprudence hardly ever determinative of
appealability or leave. The role of the final effect of an interim order recedes
into the background when an interim order impermissibly trenches upon the
sole terrain of the other branches of government. To arrest the execution of
Council's policy decision as finally as the High Court has done before a
determination of the grounds of review, is too drastic a measure to take in the
circumstances. It remains the constitutional and statutory responsibility of
Council to determine the fate of the street names, obviously subject to
facilitation of genuine and appropriate public participation in the name-
changing process. The power to determine how much of Council's budget will
be used, when and for what purpose is also firmly in the hands of Council.”
[10] Sutherland summarised the test as follows:
In general, the attribute of “finality” which may attach itself to a, supposedly,
interim order is of course not to be equated with an order which is literally
“irreversible”. The point at issue is effect not form. However, even with a
reversible order, the aspects of the duration that the order is to operate, the
likelihood of contingent factors that might provoke a reconsideration of the
likelihood of contingent factors that might provoke a reconsideration of the
order and the logistics of a reverse transition from a change brought about by
a new status quo created by the implementation of the order all weigh in the
assessment of the true “effect” of an order.
Moreover, especially with orders that affect human relationships, it could fairly
be said that they address moving targets. The formal legal reversibility of
such an order is not necessarily determined by the status quo at the time the
initial order was given but may be dictated by circumstances that flow from
the evolution of the conditions and circumstances brought about by the
“interim” order itself. In other words, the momentum in the tide of affairs of the
affected people can be shaped by the unavoidable consequences of the
changes brought about by the “interim” order. Such effects are not always
capable of being undone and what in truth happens is that a fresh order is
later required to manage a reverse transition, if, and only if the circumstances
that prevail at that later time, are conducive to a reversal at all. The reality is
that, in given circumstances, the initial order has indeed a final effect.
[11] On the day of the hearing, NUMSA brought to the attention of the court and the
respondent (AMSA) the judgment in Regenesys Management (Pty) Ltd t/a
Regenesys v Ilunga & others 6, wherein the Constitutional Court stated the
following:
“[74] Why do paras (a) to (c) share common features among themselves which they
do not share with para (d)? The reason is that s 189A(13) has two purposes. The
one purpose, which may be called the primary purpose, relates to orders
contemplated in paras (a) to (c) but does not relate to an order contemplated in
para (d). The purpose of orders contemplated in paras (a) to (c) is to ensure that
the employer complies with a fair procedure before it dismisses employees for
operational requirements finally. That is why the provisions of paras (a) to (c) end
with the phrase ‘with a fair procedure’ and why the verb ‘comply’ appears in
different forms and shapes before that phrase in these paragraphs.
[75] The order contemplated in para (a) is meant to be granted before or at the start
of or during the consultation process when there has been no dismissal as yet and
when there is no imminent dismissal. An order contemplated in para (a) compels
the employer to comply with a fair procedure. An order contemplated in para (b) is
one meant to be granted where the dismissal of an employee is imminent in
circumstances where the employer has not complied with a fair procedure. That
circumstances where the employer has not complied with a fair procedure. That
order would interdict or restrain the employer from dismissing the employee or
employees before it complies with a fair procedure. The order contemplated in para
(c) applies when a dismissal has happened without compliance with a fair
procedure when it is still appropriate to reverse the dismissal and put the
consultation process back on track
[76] An order contemplated in para (c) may not be appropriate if a significant time
has lapsed between the date of dismissal and the date of adjudication. This is
because the reinstatement under para (c) is not necessarily final. It is granted to
6 (2024) 45 ILJ 1723 (CC).
enable the employer’s compliance with a fair procedure. The outcome of the
employer’s compliance with a fair procedure could be that the employees remain in
the employer’s employment or they could be dismissed after a fair procedure has
been followed. It is a temporary order. In fact, the order contemplated in para (b)
is also a temporary order in that the employer is not permanently interdicted from
dismissing the employees but is interdicted until it complies with a fair procedure.
[77] The order contemplated in para (d) is not temporary. It is final. Paragraph
(d) does not say that the payment of compensation by the employer must be made
until the employer has complied with a fair procedure. The order in para (d) is made
on the acceptance that the employer has failed to comply with a fair procedure and
the employer is not given another chance to comply with a fair procedure. The
order contemplated in para (d) is made to ensure two objectives, namely to hold the
employer accountable for its failure to comply with a fair procedure by ensuring that
there are consequences visited upon the employer for such unacceptable conduct
and to compensate the employee for the infringement by the employer of his or her
right not to be dismissed in a procedurally unfair manner.”
7
…
“[100] When one considers how much time should elapse before it can be said that
an order contemplated in para (c) would not be appropriate, one should remember
that provisions in labour legislation that grant a court the power to order a status
quo order pending some processes are not new in our labour law. Under the
1956 LRA as amended, two sections gave the Industrial Court such powers. The
one was s 17(11)(a) and the other s 43(4). For purposes of this matter it is only
necessary to say something about s 43. Under that section the Industrial Court had
powers to order the temporary reinstatement of an employee whose dismissal it
found to prima facie constitute an unfair labour practice. That order of reinstatement
found to prima facie constitute an unfair labour practice. That order of reinstatement
was popularly known as a status quo order. Such an order of reinstatement
endured for 90 days or until one of certain events stipulated in that provision
occurred but the court could extend the operation of that order beyond 90 days.
[101] The purpose of such a reinstatement was to place the employee in the
position that he or she was in before the prima facie unfair labour practice was
committed by the employer to enable the parties to try to settle the dispute. In the
case of a dismissal for operational requirements — which is what we are
dealing with in the present case — the basis of the conclusion that the
7 NUMSA’s emphasis.
dismissal prima facie constituted an unfair labour practice could be that the
employer had not complied with a fair procedure in the sense that there was no
consultation or because, although there was consultation, such consultation was
not a proper consultation.”8
[12] NUMSA contends that the question whether section 189A(13)(a) to (c) orders
are interlocutory orders, has been emphatically settled by Regenesys . The
judgment confirms that there is a distinct difference between an order for
compensation in terms of Section 189A(13)(d) of the LRA (which is a final
order) and an order in terms of Sections 189A(13)(a) to (c) of the LRA (which
orders are not final but interim or temporary) ; and that orders in terms of
sections 189A(13)(a) to (c) are comparable to the previous status quo orders
issued by the erstwhile Industrial Court, which orders were
temporary/interlocutory in nature.
[13] I am not persuaded by this interpretation. The CC is referring to the potential
consequences / effects of the order s. In respect of orders under s198A(13) (c),
the Court is saying that the effect of the order is or may be temporary in the
sense that the reinstatement under para (c) is not necessarily final . The
outcome of the employer’s compliance with a fair procedure could be that the
employees remain in the employer’s employment or they could be dism issed
after a fair procedure has been followed.
[14] There is a conceptual difference between the potential effects of an order under
s189A(13)(c) as described and an interlocutory order not having the effect of a
final judgment.
[15] On my interpretation, the Order is not an interlocutory order not having the
effect of a final judgment. While it restores the status quo ante and may
potentially have a temporary effect (as described above), the decision
constitutes a final resolution of the whole controversy that came before the
court; it is a once-off order that stands on its own merits ; the order will remain
court; it is a once-off order that stands on its own merits ; the order will remain
wholly unaffected by any subsequent consultations and/or dismissals; and the
order is not subject to revisitation by the court that gave the order.
[16] As aptly articulated by AMSA:
8 NUMSA’s emphasis.
Having regard to the effect of the Order and the Court’s reasons, the Order is
final in effect (has the effect of a final judgment) in that:
It is definitive of the rights of the parties, particularly whether the dismissals
effected in September 2025 were procedurally fair and whether reinstat ement
was an appropriate remedy.
It definitively determines the parties’ right s and obligations vis -s-vis the
procedural fairness remedy under section 189A(13) of the LRA on the facts
before the Court.
It interdicts dismissals and mandates reinstatement and directs a particular
procedural course (resumption of consultation) pending compliance. That is not
case-management housekeeping.
The fact that section 189A(13) of the LRA relief is supervisory in nature does
not transmute a binding final order into an interlocutory ruling. Nor does the
theoretical possibility of future applications under section 189A(13) of the LRA
concerning later conduct render the present order provisional.
NUMSA’s submission that section 189A(13)(a) -(c) orders are inherently
interlocutory disregards the fact that the statutory remedy is designed to yie ld
final, executable directions concerning any procedural defect in real time.
Even if a supervisory label is applied, the order possesses the trapping of
finality relevant to section 18(2) of the SCA: it is definitive of the issues before
the Court, not susceptible to alteration by the same court on the same facts ;
and dispositive of the urgent relief sought under section 189A(13) of the LRA.
Section 18(3) application
[17] NUMSA also seeks an order in terms of section 18 o f the Superior Court s Act
to put the Order into operation pending the outcome of the respondent’s leave
to appeal/appeal.
[18] The test is now well established. In University of the Free state v Afriforum
2018 (3) SA 428 (SCA ) Burton Fourie AJA summed up the approach to be
applied:
“[9] …What is immediately discernible upon perusing s 18(1) and (3) is that the
applied:
“[9] …What is immediately discernible upon perusing s 18(1) and (3) is that the
legislature has proceeded from the well -established premise of the common
law that the granting of relief of this nature constitutes an extraordinary
deviation from the norm that, pending an appeal, a judgment and its attendant
orders are suspended. Section 18(1) thus states that an order implementing a
judgment pending appeal shall only be granted 'under exceptional
circumstances'….
[10] It is further apparent that the requirements introduced by s 18(1) and (3) are
more onerous than those of the common law. Apart from the requirement of
'exceptional circumstances' in s 18(1), s 18(3) requires the applicant 'in
addition' to prove on a balance of probabilities that he or she 'will' suffer
irreparable harm if the order is not made, and that the other party 'will not'
suffer irreparable harm if the order is made. The application of rule 49(11)
required a weighing-up of the potentiality of irreparable harm or prejudice
being sustained by the respective parties and, where there was a potentiality
of harm or prejudice to both of the parties, a weighing-up of the balance of
hardship or convenience, as the case may be, was required. Section 18(3),
however, has introduced a higher threshold, namely proof on a balance of
probabilities that the applicant will suffer irreparable harm if the order is not
granted, and conversely that the respondent will not if the order is granted.
[11] In Incubeta Holdings supra [8] para 24 Sutherland J aptly commented as
follows on s 18(3):
'A hierarchy of entitlement has been created, absent from the South
Cape [Corporation] test. Two distinct findings of fact must now be
made, rather than a weighing-up to discern a preponderance of
equities.'
DE van Loggerenberg & E Bertelsmann Erasmus: Superior Court
Practice vol I 2 ed (service issue 2) correctly conclude that s 18(3) 'is a
novel provision and places a heavy onus on the applicant'. On a
proper construction of s 18, it is clear that it does not merely purport to
codify the common-law practice, but rather to introduce more onerous
requirements…
[12] …
codify the common-law practice, but rather to introduce more onerous
requirements…
[12] …
[13] Whether or not 'exceptional circumstances' for the purposes of s 18(1) are
present must necessarily depend on the peculiar facts of each case. In
Incubeta Holdings supra [8] para 22 Sutherland J put it as follows:
'Necessarily, in my view, exceptionality must be fact- specific. The
circumstances which are or may be exceptional must be derived from
the actual predicaments in which the given litigants find themselves.'
I agree. Furthermore, I think, in evaluating the circumstances relied
upon by an applicant, a court should bear in mind that what is sought
is an extraordinary deviation from the norm, which, in turn, requires
the existence of truly exceptional circumstances to justify the
deviation.
[14] A question that arises in the context of an application under s 18 is whether
the prospects of success in the pending appeal should play a role in this
analysis. In Incubeta Holdings Sutherland J was of the view that the
prospects of success in the appeal played no role at all. In Liviero Wilge Joint
Venture supra [8] [para 30] Satchwell J, Moshidi J concurring, was of the
same view. However, in Justice Alliance supra [8] para 27 Binns -Ward J
(Fortuin and Boqwana JJ concurring) was of a different view, namely that the
prospects of success in the appeal remain a relevant factor and therefore —
'the less sanguine a court seized of an application in terms of s 18(3)
is about the prospects of the judgment at first instance being upheld
on appeal, the less inclined it will be to grant the exceptional remedy
of execution of that judgment pending the appeal. The same quite
obviously applies in respect of a court dealing with an appeal against
an order granted in terms of s 18(3).'
[15] I am in agreement with the approach of Binns-Ward J. In fact, Justice Alliance
serves as a prime example of why the prospects of success in the appeal are
relevant in deciding whether or not to grant the exceptional relief. Binns -Ward
J concluded that the prospects of success on appeal were so poor that they
ought to have precluded a finding of a sufficient degree of exceptionality to
justify an order in terms of s 18 of the Act. This conclusion was subsequently
proven to be justified when this court upheld the main appeal in Justice
Alliance. However, in the present appeal, the appeal record in the review
application was not before us. The prospects of success shall therefore not
application was not before us. The prospects of success shall therefore not
feature in our consideration whether or not the order of the Full Court should
be upheld.”
[19] From the above authorities, the following is evident.
(i) The relief sought by NUMSA constitutes an extraordinary deviation
from the norm and any order granted in terms of section 18 of the
Superior Courts Act not only has been described as exceptional but
requires the existence of “truly exceptional” circumstances.
(ii) NUMSA bears a heavy onus and must satisfy equally onerous
requirements, being the establishment of distinct findings of fact : that
exceptional circumstances exist that justify the Order being put into
operation; proof on a balance of probabilities that i t will suffer
irreparable harm if the Order is not put into operation; and, proof on a
balance of probabilities that the respondent (AMSA) will not suffer
irreparable harm should the execution order be granted.
(iii) If NUMSA fails to prove any one requirement, the application must fail.
(iv) The SCA emphasized that “exceptionality” is fact specific and the
circumstances which must be exceptional must be derived from the
actual predicaments in which the parties find themselves.
(v) The prospects of success on appeal are a factor to be taken into
account in the overall discretion which the Court must exercise when
determining whether exceptional circumstances exist.
[20] NUMSA contends that the entire purpose of the Order and the underlying
statutory design will be undermined, s hould the Order be suspended. NUMSA
and its affected members will suffer irreparable harm in that they will
irretrievably lose the opportunity to potentially save jobs by way of engaging in
meaningful joint -consensus seeking consultations; and o n the other hand,
AMSA, will suffer no harm, let alone irreparable harm in that financial losses are
not considered to constitute irreparable harm and A MSA in dicates that it will
simply place workers on short-time should they be reinstated.
[21] I am not persuaded that NUMSA has discharged the heavy onus required
under section 18(3) to justify enforcement pending appeal.
[22] The critical facts, gleaned in terms of the Plascon Evans rule, are that:
(i) All production facilities at the Newcastle plant are shut down, with no
steel output currently taking place; the blast furnace has been
deactivated, the coke batteries have been hot idled. There is therefore
deactivated, the coke batteries have been hot idled. There is therefore
no functional workplace to return to, and a s set out in AMSA’s letter of
28 October 2025, should reinstatement be phy sically implemented,
AMSA will be forced to place the employees on short -time with no
remuneration benefits to the employees.
(ii) Severance pay has been paid out with no tender to repay.
(iii) The structural and macro- economic constraints which led to the
decision to close the company and retrench have not changed: inter
alia weak domestic demand, import pressures and circumvention,
uncompetitive rail and port costs, electricity price and scrap advantage
distorting competition, and no market for Longs steel.
(iv) Despite being directly challenged, NUMSA has failed, in its reply, to
identify any viable alternative that remains open for consultations or
any credible option capable of preserving jobs or supporting the re-
opening of the plant.
9 NUMSA merely asserts in reply, in speculative
terms, that the acceptance of an offer to purchase is a distinct
possibility. However, no evidence has been placed before court that
indicates there is an imminent viable offer that could immediately
reverse the situation.
(v) The replying affidavit claims the respondent is silent about electricity
pricing and agreements, but the answering affidavit addresses the
point: eligibility for a pricing agreement was confirmed but no reduced
tariff agreement exists.
(vi) It was mutually recognised at the consultation process that only
massive external intervention could avert closure. That intervention has
not materialised.
(vii) Matters regarding TERS, IDC facilitation, government support, and
NERSA/Eskom engagement were canvassed during consultation.
NUMSA has not shown that any of these factors (alternatives) are
presently viable or even available.
(viii) The alleged developments NUMSA invokes (IDC facility, TERS, and
NERSA’s threshold eligibility decision) do not constitute material
change to the rationale. The IDC deferral facility was expressly time-
bound and did not extend beyond September 2025. TERS assistance
9 Given the time from instituting the s189A(13) application to date, NUMSA had sufficient time to apply its
mind to same, so it was not unreasonable for the respondent to require NUMSA in this application to identify
options.
was approved/communicated but on AMSA’s version no TERS monies
were received. No reduced tariff agreement exists.
[23] Essentially, AMSA is faced with a situation where it could suffer real, immediate
and irreparable prejudice if compelled to reverse operational decisions
midstream and reinstate employees into shuttered operations placed under
care and maintenance, with it appears no foreseeable change in the status
based on the above facts.
[24] Reinstatement would expose it to significant operational, financial and safety
risks that are not merely inconvenient they are irreparable in nature.
[25] AMSA cannot derive any benefit from reinstated employees because the plant
has fully shut down, with no functional workplace to return to.
[26] Short-time is not a statutory mechanism for consultation under section 189 of
the LRA, and commercially irrational under the circumstances.
[27] Workers who are reinstated following a section 189A( 13) order must tender
back any severance packages they received upon retrenchment. This principle
is rooted in the notion that reinstatement restores the employment relationship
retrospectively, nullifying the basis for severance pay. No tender back has
occurred and its neither possible nor practicable to recover same.
[28] NUMSA argues reinstatement purely in service of consultation, but if there is no
viable operational environment, no concrete proposal to make consultations
meaningful reinstatement is not a workable or legally coherent remedy.
[29] Reinstatement coupled with short -time also does not benefit the employees.
Moreover, any separation payments already made would either be withheld or
subject to recovery.
[30] As to the argument that the entire purpose of the Order w ill be undermined, the
members’ position is indistinguishable from that of any reinstated worker: the
judgment’s benefits are deferred until the appeal process is concluded.
[31] Future consultations will not be academic if an appeal is unsuccessful and can
[31] Future consultations will not be academic if an appeal is unsuccessful and can
easily resume after the conclusion of an appeal process. In South African
Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty)
Limited10 the Constitutional Court delivered judgment on November 2018 in
respect of dismissals that took place during 4 November 2021. Bearing in mind
that the below dicta was based on the availability of work, whereas in this case
there is no availability of work, the court held that consultations were still
possible after the delivery of the judgment by the Constitutional Court, seven
years later:
“[56] Although the respondent knows now that it had misunderstood the applicants’
last proposal, there is nothing on record that suggests that it has, in the meantime,
accepted that proposal as it was. They may have wanted to discuss it further with
the applicants. Accordingly, we do not know what agreement the two sides could
have ultimately agreed upon. That means that we do not know the terms and
conditions under which the applicants would have continued to work for the
respondent if they had never been dismissed. In these circumstances it seems to
me that we should revive the contracts of employment which existed between the
applicants and the respondent at the time of dismissal on the basis that as soon as
possible after this judgment has been handed down the parties may resume the
consultation process which ended when the dismissal took place and the applicants
may then revive their proposal or make another proposal aimed at the parties
reaching an agreement on the issue of them working flexitime. Accordingly,
Woolworths has not shown that reinstatement is not reasonably practicable”.
[32] This principle applies squarely here. If the appeal is unsuccessful, the parties
can resume consultations from the point at which they were unfairly interrupted.
That is not academic. It is the very purpose of reinstatement.
[33] In addition, AMSA has tendered in its papers to consult about alternatives
without reinstating workers. None were forthcoming. This is not extraordinary or
unfair. In Semenya and Others v Commission for Conciliation Mediation and
Arbitration and Others
Arbitration and Others
11 the court approved the principle in Johnson & Johnson
(Pty)Ltd v Chemical Workers Industrial Union a case dealing with retrenchment
(where at conciliation the employer again undertook to consider alternatives,
but none were forthcoming from the union or the employees)
12 and held thus –
10 1 (CCT275/17) [2018] ZACC 44; (2019) 40 ILJ 87 (CC); 2019 (3) BCLR 412 (CC).
11 (JA26/2003) [2006] ZALAC 2; [2006] 6 BLLR 521 (LAC); (2006) 27 ILJ 1627 (LAC) (23 March 2006).
12 (1999) 20 ILJ 89 (LAC).
“While dealing with the issue of whether the absence of a pre-dismissal hearing or
opportunity to be heard can be cured by a later hearing or later opportunity to be
heard that comes after the decision has been taken, it is worth noting what was
said by both the Labour Court, in Chemical Workers Industrial Union v Johnson &
Johnson (Pty)Ltd [1997] 9 BLLR 1186 (LC) at 1198 E -H), and, this Court, in
Johnson & Johnson (Pty)Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89
(LAC) at paras 49-51. The latter decision was an appeal from the former decision.
One of the features of that case was that the employer had initially failed to offer
female employees the opportunity to try certain jobs before dismissing them for
operational requirements but had later offered them that opportunity and they did
not accept it. Both the Labour Court and this Court on appeal held that the
dismissal of such female employees was not by reason of such failure on the part
of the employer unfair because it was the employees who had prevented the
employer from remedying the initial defect when they did.
Both in Cabinet for the Territory of South West Africa v Chikane 1989 (1) SA 349
(A) at 379 F-G and in Administrator, Transvaal and others v Traub & others 1989
(4) 8A 731(A) at 748 G-I and 750 B-F the Appellate Division (now Supreme Court of
Appeal) acknowledged that there are circumstances where it is acceptable for the
audi alteram partem rule to be observed after the decision has been taken. not
accept the employer’s later offer.”
[34] Further if the appeal is unsuccessful, the order of reinstatement would remain
in place. There is no prejudice to workers in allowing the appeal to run its
course, as their rights remain protected and enforceable. Further, in such event
(if AMSA was unsuccessful ), given the closure of the plant, the remedy if any
will have to be confined to compensation, which is a financial remedy under
189A(13)(d).
will have to be confined to compensation, which is a financial remedy under
189A(13)(d).
[35] As to prospects of success on appeal, AMSA ’s extensive submissions on the
matter demonstrate it is a highly relevant issue in this application and should
count as a factor that weighs against granting the application.
[36] As to costs, fairness dictates that each party bears its own costs.
Order
The application is dismissed, with no order as to costs.
_________________________________
Benita Whitcher
Judge of the Labour Court of South
Africa
APPEARANCES:
For the Applicant: Minnaar Niehaus Attorneys
For the Respondent: F A Boda SC, instructed by Cliffe Dekker Hofmeyer
Incorporated