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[2025] ZALCCT 129
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Solidarity obo Arendse v Heineken Beverages (Pty) Ltd (C583/2023) [2025] ZALCCT 129 (8 December 2025)
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Case
no: C 583/2023
(1)
Reportable: Yes
(2)
Of interest to other Judges: Yes
(3)
Revised - No
08
December 2025
In
the matter between:
SOLIDARITY
obo C J ARENDSE & 38
OTHERS
Plaintiffs
and
HEINEKEN
BEVERAGES (PTY) LTD
Defendant
Heard
:
20
February 2025 and 27 November 2025
Delivered
:
8 December 2025
Summary:
(S 5 of the LRA - Non-payment of bonus
to strikers – survey of jurisprudence on the correct test for
determining breach of
prohibited discrimination under s5 and use of
economic measures to incentivise employees not to engage in strike
action –
Employer failing to discharge onus of demonstrating
that withholding bonus from strikers justified)
JUDGMENT
LAGRANGE, J
Nature of the case
[1]
This is a case concerning an alleged breach of
sections 5 (1), 5 (2) (c) (vi), and (vii) read with section 9 of the
Labour Relations
Act, 66 of 1995 (’the LRA’), on account
of the employer not paying a bonus to employees who participated in a
protected
strike. The plaintiffs originally also claimed that the
employer’s conduct amounted to unfair discrimination in terms
of
section 6 read with section 10 of the Employment Equity Act, 55 of
1998 (‘the EEA’). Ultimately, only the first
claim
under the LRA was pursued.
[2]
The relevant sections of the LRA state:
“
5 Protection
of employees and persons seeking employment
(1) No person may
discriminate against an employee for exercising any right conferred
by this Act.
(2) Without limiting the
general protection conferred by subsection (1), no person may do, or
threaten to do, any of the following-
(a) …
(b) …
(c)
prejudice an employee or a person seeking employment because of past,
present or anticipated-
…
(vi)
exercise of any right conferred by this Act; or
(vii)
participation in any proceedings in terms of this Act.
(3) No person may
advantage, or promise to advantage, an employee or a person seeking
employment in exchange for that person not
exercising any right
conferred by this Act or not participating in any proceedings in
terms of this Act. However, nothing in this
section precludes the
parties to a dispute from concluding an agreement to settle that
dispute.”
(emphasis added)
[3]
The anti-victimisation provision in the previous Labour Relations
Act, 28 of 1956, was s7, which was confined to protection
against
punitive measures taken on account of being involved in union
activity, which read:
“
No
employer shall dismiss or prejudice an employee, or threaten to do
so, by reason of the fact that the employee is or has been
a member
of a trade union or has acted in accordance with the constitution of
a trade union or has participated in its lawful activities.”
[4]
The pertinent substantive provision of the EEA applicable to the
dispute states:
“
6
Prohibition of unfair discrimination
(1) No person may
unfairly discriminate, directly or indirectly, against an employee,
in any employment policy or practice,
on one or more grounds,
including race, gender, sex, pregnancy, marital status, family
responsibility, ethnic or social origin,
colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language, birth
or on any other arbitrary ground.
…”
[5]
The dispute arises from a failure by the defendant (‘Heineken’)
to pay a short-term incentive bonus (‘STI’)
to members of
the union, Solidarity, following their actual or presumed
participation in a protected strike, whereas employees
who did not
participate in the strike were paid the STI.
[6]
The parties were largely in agreement on the relevant facts and after
discussion and with their consent, the court directed
that the matter
should be decided by way of a stated case. After exchanging proposed
drafts, the parties reached consensus on the
stated case and filed
heads of argument by early April 2025. It was agreed that oral
argument would be heard only if either party
requested or the court
deemed it appropriate. In the upshot, no oral argument was heard. In
the course of preparing a judgment
it appeared that there were
certain factual issues which still needed to be resolved before the
matter could be decided as a stated
case. A directive was issued to
the parties to clarify the factual questions, and a revised stated
case was filed on 27 November
2025.
[7]
Heineken also applied for condonation for the late filing of its
plea, which was four days late. The application was not
opposed and
given the shortness of the delay, the absence of any demonstrable
prejudice to the plaintiff’s, and the explanation
provided for
the delay, I am satisfied that condonation should be granted.
The stated case
[8]
The amended stated case is set out below.
“
1
INTRODUCTION
1.1. The parties attended
the trial proceedings before the above Honourable Court on 20
February 2025. The Honourable Justice Andre
Lagrange ("Judge")
handed down an ex-tempore order regarding the manner in which the
trial would proceed.
1.2. The parties agreed
that this matter be heard on a stated case basis to determine whether
the Plaintiffs were treated differently
(as alleged) due to their
participation in a protected strike and whether such differentiation
is discrimination in terms of section
5(1) and 5(2)(c)(vi), (vii) of
the Labour Relations Act ("LRA").
1.3. The Plaintiffs
sorted the bundle of documents in chronological order. The bundle of
documents should be read in conjunction
with the stated cases and
heads of argument of the parties, being the copies of all documents
necessary at the outset of the hearing
of the matter to enable this
Honourable Court to decide the question proposed to the Judge
appointed to adjudicate the matter.
1.4. The parties agreed
that the Plaintiffs will pursue the following points contained in the
pre-trial minute:
1.4.1
Whether a partial Short term Incenctive ("STI") payment was
made in respect of the period July 2022 to April 2023.
1.4.2. Whether Andries
Smit and Stanton van Rooyen participated in the strike and received
their STI bonus payment.
1.4.3. Whether employees
have been advantaged by receiving payment of the STI in exchange for
the waiver to exercise their right
to participate in the industrial
action in terms of section 5(3) of the LRA.
1.4.4. Whether the
Defendant discriminated against the Plaintiffs in terms of
section 6
and
10
of the
Employment Equity Act.
>2.
THE PARTIES
2.1. Solidarity, acting
on behalf of the Plaintiffs, a registered trade union in terms of the
Labour Relations Act with its head
office situated on the corner of D
F Malan Avenue and Eendracht street in Kloofsig, Centurion.
2.2. The Defendant is
Heineken Beverages (Pty) Ltd with its main place of business at
Inanda Business Park, 54 Wierda Road, Sandton,
Gauteng. A large
section of the Defendant's head office function is situated at
Aan-deWagenweg, Stellenbosch, Western Cape.
2.3.The Defendant is
represented by Edward Nathan Sonnenbergs Inc ("ENS") with
its address at 35 Lower Long Street, Foreshore,
Cape Town.
3.
THE PARTIES AGREE THAT
THE FOLLOWING FACTS ARE COMMON CAUSE
3.1,
The factual background to which this current matter relates is
pleaded and set out in the parties' respective statements of
case and
statement of response
[1]
and
occurred within the area of jurisdiction allocated to this Honourable
Court.
3.2.
The payment of any STI to an employee is at all relevant times
subject to the Defendant's STI
policy. In terms of the STI policy
3
,
payment is subject to the
qualifying criteria
. Payment of the
STI is also subject to the approval thereof by the Defendant's Board
of Directors.
3.3. In the event that
the Board of Directors approve the STI payment, such payment was
effected in October every year. Due to the
merging between Distell
Limited ("Distell") and the Defendant, the STI payment was
delayed and payment was effected with
the Defendant's June 2023
payroll.
3.4. The qualifying
criteria as determined by the STI policy reads as follows:
"Short term
incentive qualifying criteria"
The payment of an STI is
discretionary and subject to the approval by the Board and may under
certain circumstances not be paid.
The following are some of the
criteria:
There
are hurdles (i.e. minimum acceptable performance) that must be
overcome before any incentive payment can be made. These hurdles
are
approved by the Board.
In
the event of gross under-performance, misconduct and/
or
industrial action
(own emphasis) the
Company may decide not to grant a STI payment. Gross
under-performance can be defined as, but not limited to,
financial
loss to the company and/or significant reputational damage to the
organization.
In
the event of a disability application surpassing the disability
waiting period, the Company may decide to pro-rate the STI payment
until the end of the disability waiting period.
Please
note that employees participating in any other scheme for example the
Sales Force Optimisation (SFO) and Marketing Incentive
Scheme do not
qualify for participation in the Corporate STI scheme.”
3.5 On or about 9 January
2023, the Commission for Conciliation, Mediation and Arbitration
("CCMA") issued a strike certificate
to Solidarity. It is
necessary to
mention
that the Food and Allied Workers Union ("FAWU"), the
Agricultural Broadbase and Allied National Trade Union ("ABANTU")
and the National Union of Food, Beverage, Wine, Spirit and Allied
Workers ("NUFBWSAW") were the representative unions
within
the Defendant's workplace, whilst Solidarity was a minority union.
The strike related to Solidarity's demand for organisational
rights
and the right to bargain within the Defendant's workplace.
3.6
During the period of 11 to 13 January 2023 the Defendant engaged with
the Plaintiffs representatives and members, informing
them, inter
alia, that the principle of "no work no pay" will apply to
any strike action and of the impact that the strike
will have on the
payment of their STI, due to criteria in terms of the STI policy.
[2]
During
the period leading up to the Plaintiffs strike in February 2023 the
Defendant, at all times, encouraged and acknowledged
the rights of
all its employees, including the Plaintiffs, to engage in a protected
strike should they wish to do so, with an understanding
of the
financial impact of doing so.
3.7. On or about 2
February 2023, Solidarity issued a notice of its strike and the
strike commenced on 6 February 2023. The strike
was called off on 8
February 2023. The strike only lasted two (2) days.
3.8. Organizational
rights were not granted to Solidarity as a result of the strike.
3.9. On or about 5 June
2023, an internal communication
from the Defendant's
Financial Director, Lucas Verwey. was distributed in which the
communication confirmed that the STI bonus had
been finalised. The
crucial part of the internal communication reads as follows,
6
“
With
this context, it is therefore my great pleasure to confirm that all
qualifying colleagues — will receive an STI bonus
together with
the June salary run. This only applies to all qualifying participants
as per the current STI Policy. "
3.10. Aggrieved by this,
the Plaintiffs submitted a group grievance on 3 July 2023.
The
Defendant dealt with the Plaintiffs' grievance verbally and with
written feedback.
3.11 Again, the letter
dated 12 July 2023 in reply to the group grievance, the Defendant
confirmed that:
"Employees who opt
to take part in industrial action will be disqualified from the STI
payable as they would no longer meet
the participating criteria as
per company STI policy.
"The Company
reserves the right to withhold or cancel STI payments to those
employees who choose to participate in the strike,
as per the company
STI policy."
3.12 The Plaintiffs did
not receive their STI bonus payment due to their participation in the
protected strike. The Plaintiffs were
not disqualified due to any
misconduct
and/or gross under-performance and the Board approved the STI bonus
payment.
3.13.
The Plaintiffs participation in the protected strike disqualified
them from receiving the STI bonus.
3.14
. The Defendant also withheld the STI from employees who
did not qualify to receive the STI payment for reasons
relating
to misconduct and/or per performance processes, and resignation
(this, in accordance with the criteria set out in the
STI
policy) . The Defendant applied the qualifying criteria
as per its STI policy in respect of all its employees
when
determining whether or not to pay /award the STI.
3.15. Participants who
did not strike and were otherwise not disqualified from receiving the
STI in terms of the criteria of the
STI policy received the STI
bonus.
3.16. It was a protected
strike, a strike that complied with the provisions of the Labour
Relations Act.
3.17. In line with
paragraph 1.4.2 herein an accordance with the direction of this
honourable court, the parties confirm that they
have reached
agreement in that the plaintiff will not pursue the point regarding
whether Mr. Smit and Mr. van Rooyen participated
in the strike and
received their STI bonus.
4.
THE FACTS THAT ARE IN
DISPUTE FOR PURPOSES OF THE DETERMINATION OF THIS MATTER
4.1. The Defendant
disputes paragraph 3.4, 3.10,
3.13,
3.18 and 3.19 of
the Plaintiffs' stated case.
4.2. Whether the payment
of the STI to Mr Smit and Mr van Rooyen was in fact an error.
4.3. The Defendant
submits that due to an administrative (human resources and payroll)
error, Mr Smit and Mr Van Rooyen, notwithstanding
their participation
in the strike and/or involvement in the industrial action, were
erroneously paid the STI. The error was not
detected by the Defendant
at the time and was only discovered after the start of these
proceedings.
5.
ISSUES THAT THE COURT
REQUIRED TO CONSIDER
5.1.
Whether the Defendant treated the Plaintiff(s)
[3]
differently by excluding the Plaintiff(s) from the STI bonus payment.
5.2. Whether, in treating
the Plaintiff(s) differently (as alleged), the Defendant has
contravened section 5(1) and 5(2)(c)(vi)
and (vii) of the LRA.
5.3. Whether, just as it
is legitimate for a trade union and its members / an employer's
employees (the Plaintiff) to resort to
industrial action, so too it
may be legitimate for an employer (the Defendant) to respond to a
strike with a legitimate exercise
of power in collective bargaining
context and an exercise of its managerial prerogative.
6.
CONCLUSION
6.1. The Plaintiffs
therefore pray that the above Honourable Court grants the following
relief:
6.1.1 The exclusion of
the members from payment of the STI is in breach of sections 5(1),
5(2)(c)(vi), (vii) of the Labour Relations
Act,
6.1.2. The Defendant is
to provide the Plaintiffs with an account of the formula, used to
calculate the STI paid to each individual,
with supporting documents
within one month of date of this order,
6.1 .3. The
Defendant is to use the formula and pay the STI to the Plaintiffs
within one (1) month thereafter;
6.1
A, That the Defendant pays the cost of suit.
6.1.5.
Further and / or alternative relief.
6.2 The Defendant prays
that the matter before the Honourable Court be dismissed with costs
and such further and/or alternative
relief as this Honourable Court
may deem appropriate.”
Submissions of the
Parties
[9]
The plaintiffs contend that the defendant’s refusal to pay the
STI bonus solely because of their participation in
a protected strike
constitutes discrimination prohibited by section 5(1) and 5(2)(c)(vi)
and (vii) of the LRA. They argue that
the right to strike is a
fundamental right under both the Constitution and the LRA, and that
employees should not be penalised
for exercising it.
[10]
They argue
that the STI was approved by the Board and they met all other
qualifying criteria. The only factor that disqualified
them was their
involvement in the strike. They contend that this differentiation
undermined collective bargaining, created coercive
pressure against
future industrial action, and indirectly limited the constitutional
right to strike. They cite the observation
made by this court in
Ngcobo &
Others v Chester Butcheries
[4]
:
"This section
(Section 5) protects employees from victimisation for having
exercised a right under the Act. The right to strike
falls within the
ambit of this provision. If the employer's conduct has the effect of
discriminating, it will fall foul of the
protection offered by s
5."
[5]
[11]
They also
cite the Labour Appeal Courts’ interpretation of s 5 of the LRA
in
Safcor
Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight & Dock
Workers Union
[6]
:
(21) Simply put, the
provisions of s 5 of the LRA constitute a prohibition against
'anti-union discrimination'. Although s 5(1)
does not qualify the
term 'discriminate' with the adverb 'unfairly', our constitutional
and anti-discrimination jurisprudence generally
require that
discrimination be unfair and/or unjustifiable in order to constitute
an infringement or violation. Differentiation
which is fair and/or
reasonable will not amount to discrimination. A contravention of s
5(1) therefore comprises two elements:
discriminatory conduct or
action and such being unjustifiable because it is irrational, lacking
in proportionality, unreasonable
or actuated by improper or
illegitimate motives.
(22) The party alleging
discrimination (or violation of the specific protections in s 5 must
establish the facts of the allegedly
objectionable behaviour, in
which event the onus of justifying it shifts to the party who engaged
in the conduct. Moreover,
the existence of differentiation or
disparate treatment is not enough; generally, it must be established
that the reason for the
differentiation relates to a proscribed
ground, in this case union membership or union activities. Where
there is more than one
reason for the differentiation, the
requirement normally will be met where it is shown
that the
prescribed ground has an element of predominance. The general
prohibition against discrimination in s 5(1) is given content,
without its generality being limited, by the provisions of s 5(2) and
5(3) which impose stricter liability in respect of specific
forms of
anti-union discrimination
.”
(emphasis added)
[12]
Further,
they place reliance on comments on the abovementioned passage made by
this court in its judgment in
National
Union of Mineworkers on behalf of Members v Cullinan Diamond Mine, A
Division of Petra Diamonds (Pty)
Ltd
[7]
which emphasised the
point that differentiation based solely on strike participation is
illegitimate unless justified:
“
(17) …
I
further understand the LAC to be saying that the discrimination
contemplated in s 5 is one that questions conduct that is irrational,
improper or tainted with illegitimate motives. I may add, in my
understanding of the section, if an employee is differentiated
simply, because he participated in protected strike action, such
differentiation is illegitimate, improper and unjustifiable.
…
(18) … (I)n my
view, an employee should not be differentiated for exercising a right
in terms of the LRA. For instance, an
employee may not be
differentiated for participating in strike action. In order for an
employee to invoke this right, he or she
must prove facts, firstly,
that a person has differentiated him or her by particular conduct and
secondly, that the conduct infringed
the provisions of s 5(1) in that
it was perpetrated on him or her because of his or her exercising a
right conferred.
…
(20) Section 5(1) employs
the word ‘for’. This word is used to indicate the object,
aim, or purpose of an action or
activity. It calls for a causal link
between the differentiation and the exercise of the right.
Differently put, the employees
must have been differentiated for
having participated in strike action. It is important to note that
the legislature does not use
words like directly or indirectly.
Therefore, if the reason for differentiation is something other than
participating in strike
action, then s 5(1) is not infringed.
Whitcher AJ in
Ngcobo
went to the extent of saying the
following:
‘
I say so, first,
taking note of the concessions made by the applicant’s witness
under cross-examination to the effect that
striking members of the
union at other outlets were indeed paid bonuses. This, as a matter of
logic, puts paid to the applicant’s
complaint under s 5 of the
Act that the strike was the cause of bonuses being withheld from
them.’ ”
[13]
As reflected in paragraph 3.13 of the stated case, Heineken does not
dispute that the plaintiffs did not receive the
bonus because they
participated in the protected strike. It accepts also that the
discrimination must not be rational or
unfair but advances the view
in its heads of argument that the ground of discrimination the
plaintiffs are relying on is an arbitrary
ground and therefore the
onus lies on them to prove not only that it acted in a discriminatory
fashion but did so irrationally
and unfairly.
[14]
In respect
of which party bears the onus, Heineken’s argument is at odds
with the LAC decisions mentioned. Firstly, the ground
of
discrimination which the plaintiffs rely on is not an arbitrary one,
but one that is specifically identified in the LRA.
Secondly,
the LAC confirmed in Safcor that it is the employer who bears the
onus of establishing that the differentiation is justifiable
[8]
.
Despite the LAC’s failure to expressly rely on s 10,
sub-section 10(b) also envisages the employer bearing the burden of
showing that the conduct is not an infringement of s 5.
[15]
However, it maintains that its conduct was lawful and consistent with
its STI policy. It argues that the STI is a discretionary
benefit,
not an entitlement, and that the policy expressly excludes employees
who engage in industrial action, alongside other
disqualifying
factors such as misconduct and underperformance. The Defendant
emphasises that this exclusion was communicated to
employees
before
the strike and applied uniformly. It further contends that
withholding the STI was not punitive but a legitimate exercise of
managerial
prerogative within the context of collective bargaining.
[16]
It argued
that the crux of the case is whether the differential treatment of
the plaintiffs in relation to payment of the STI bonus
amounted to
unfair discrimination and therefore a breach of s 5(1). It places
particular reliance on the LAC decision in
Cullinan
[9]
,
which upheld the Labour Court decision and clarified that an employer
is not prevented from rewarding non-striking employees as
part of the
exercise of economic power in the collective bargaining process,
subject to certain conditions being met:
(25) Thus, just as it is
legitimate for a trade union to resort to industrial action
(temporarily suspending the contract) in response
to an employer’s
unilateral management changes, so too it may be legitimate (depending
on the circumstances) for the employer
to respond to a strike with a
unilateral exercise of the managerial prerogative to alter
temporarily the terms of employment. Economic
sanctions underwrite
the collective bargaining process. The unilateral offer of bonuses or
additional overtime payments to non-strikers
(who may not be members
of the union) is no more or less objectionable than the employment of
replacement labour, provided the
measures are suitable and necessary
(proportional) for that purpose.”
Solidarity
made no reference to the LAC decision in
Cullinan.
[17]
Heineken argues that differentiation is permissible if rational,
proportionate, and connected to a legitimate purpose.
It argues that
the decision to withhold STI was aimed at preserving operational
stability and was neither arbitrary nor actuated
by improper motives.
Jurisprudential
background
[18]
Before analysing the factual scenario in this case, a brief survey of
the factual scenarios and outcomes in the
various judgements
dealing with the denial of a benefit to strikers is useful to
illustrate the courts’ changing approach
to cases of this
nature.
Chemical Workers
Industrial Union v BP South Africa
[10]
[19]
The
underlying dispute in this case was ultimately formulated as an
unfair labour practice claim under the pre LRA legislation.
The union
claimed that
ex-gratia
payments made to non-strikers while its members were engaged in a
legal strike was an unfair labour practice either because it
amounted
to victimisation, or the payments had been introduced unilaterally
without negotiating with the union, which was the sole
bargaining
agent, or it amounted to a unilateral amendment of working
conditions
[11]
. It is the
first claim that is pertinent here. The industrial court found
that :
“
I am quite
satisfied that respondent's payment of bonuses to certain of its
non-striking employees on 25 October 1989 constituted
recourse to an
economic weapon well within the parameters referred to above.
Firstly, …, it is common cause that respondent's
objective in
deciding to pay the bonuses was the preservation and continued
viability of respondent's business operations. Secondly,
…, I
am convinced that respondent's payment of the bonuses was a suitable
and necessary measure for respondent to employ
in combating the
strike with which it found itself confronted, particularly if regard
be had to respondent's position as a major
supplier of petroleum
products to strategic and essential services. Thirdly, …
payment of the bonuses constituted a fair
and reasonable response to
the strike, particularly inasmuch as (a) respondent's decision to pay
bonuses was taken only after the
commencement of the strike, and (b)
no bonuses were paid after the strike ceased. In the result, …
I am quite unable to
find … that there was anything inherently
unfair in respondent's payment of bonuses to certain of its
non-striking employees,
or that such payment constituted an unfair
labour practice (as an act of victimization) in terms of para (j) of
the definition
of that expression in s 1 of the LRA or otherwise. Nor
are my conclusions in this regard in any way affected by the fact
that the
payment of the bonuses may possibly have weakened the
position of applicant in the bargaining process or discouraged trade
union
members.
These are merely some of the consequences which may
result from the cut and thrust of collective bargaining, in which the
court
should not F be too keen to intervene
(cf the remarks of
Landman AM in NUM v Henry Gould (Pty) Ltd & another (1988) 9 ILJ
1149 (IC) at 1156I).
…
, I am of the
view that, apart from anything else, respondent's payment of bonuses
to certain of its non-striking employees on 25
October 1989 was an
act justified by considerations of necessity.
In short,…
the payment of such bonuses was a fair and reasonable response by
respondent to the strike with which it found
itself confronted, but,
further, that it was a legitimate (in the sense of a lawful)
response
.
…
I accept as a
basic proposition that it is only fair that employees having the same
seniority and employed in the same job category
by the same employer
in the same plant should enjoy the same terms and conditions of
employment unless there are good and compelling
reasons to
differentiate between them (cf A NUM v Henry Gould (Pty) Ltd &
another at 1158A-B; NAAWU v Atlantic Diesel Engines
(Pty) Ltd (2)
(1990) 11 ILJ 579 (IC) at 585A-586E). However, the fact of the matter
is that where certain of an employer's workers
elect to embark upon a
strike whilst others do not,
good
and compelling economic reasons do exist for the employer
differentiating in his treatment of striking and non-striking
workers,
albeit, as in the instant case, for the duration of the
strike only. In such circumstances, there cannot, in my opinion, be
talk
of any victimization of striking workers
.
Moreover,
it seems to me inappropriate to refer to respondent's payment of
bonuses to certain of its non-striking employees as 'victimization',
even in the broadest sense of the word, when it is clear that
respondent's object in making such payment was not to penalize
applicant's striking members, but, rather, to preserve its business
operations (cf in this regard East Rand Gold & Uranium
Co Ltd v
NUM at 696G-I)
.”
[12]
SA Commercial Catering &
Allied Workers Union v OK Bazaars (1929) Ltd
[13]
[20]
In this case, a pre-existing bonus was part of employees conditions
of service. The company had adopted a policy of not
paying a full
bonus to workers who participated in a strike during the year. In the
case of illegal strikes, the entire bonus was
forfeited. Prior to the
commencement of a legal strike in 1990, employees were warned that if
they went on strike they would forfeit
the bonus in accordance with
past practice and their terms and conditions of employment. After the
strike ended, the company decided
to give a bonus to non-strikers. In
the case of strikers the normal forfeiture formula, of reducing the
bonus for every day on
strike, was applied. Because of the length of
the strike the strikers forfeited their entire bonus. The union
argued, as a matter
of principle, that inducements to employees to
desist from striking amounted to an unfair labour practice. The court
held:
“
The
threat of withholding a bonus from strikers, or the actual
withholding thereof, does not affect workers' freedom to strike.
That
freedom remains undiminished. The only result is to increase the
practical disadvantages to strikers A which may flow from
a
particular strike action. When a strike is contemplated there are a
number of conflicting considerations which are logically
relevant to
the decision whether to proceed or not. On the one hand, there are
the potential advantages to be derived from a strike
by way of
increased wages, improved conditions of service, etc. The extent of
these benefits, and the likelihood of obtaining them,
have to be
weighed against the disadvantages which would or could flow from
strike action. Thus the striking workers would normally
lose their
wages for the duration of the strike. In addition they may face
dismissal lock-outs or other forms of retaliation by
the employer,
which may, depending on the C circumstances, be lawful. A financial
disincentive of the sort with which we are here
concerned would make
it more expensive for workers to strike, or, to look at it from the
other side, more advantageous to stay
at work. It may therefore in a
particular case tilt the balance of expected advantages against
striking - the worker may consider
that he would probably lose more
from striking than he would gain. In this way the financial
disincentive might help to prevent
a strike but this does not, in
principle, derogate from workers' freedom to strike if they consider
it, on balance, to be in their
best interest. In my view this result
is not necessarily unfair in the sense contemplated by the unfair
labour practice definition.”
[14]
(emphasis
added)
[21]
The court
also rejected the contention that there was anything unfair about the
nonpayment of the bonus in the particular circumstances
of the case.
In arriving at that conclusion, it considered that the employer’s
financial situation was parlous and the union
had pursued demands
that the employer could never have met. It also took account of the
fact that the bonus was discretionary and
not part of their terms and
conditions of employment. Workers were also made aware that they
faced forfeiture of the bonus if they
went on strike. The strike was
a long one lasting seven weeks, causing the employer substantial
losses and resulting in a settlement
substantially lower than the
union’s demands. The court felt in the circumstances it would
be “
somewhat
anomalous for striking workers to claim a bonus granted in
recognition of service during the year.”
[15]
Food & Allied
Workers' Union and Others v Pets Products (Pty) Limited
[16]
[22]
This is the first reported case in which employees relied on s 5 of
the LRA. After the end of a nine-day strike, the
employer issued
employees, who had not joined the strike, with R200 Pick n Pay
vouchers. The union alleged that the payment contravened
section 5
(1) and, or alternatively, section 5 (3) of the LRA. The employees in
the operations division who remained at work enabled
the employer to
maintain production at a level that allowed it to shut down on 16
December with its customary stock level at that
time of the year. The
vouchers were issued to these employees in February the following
year and the employer expressly stated
that they were to reward them
for their hard work (”going the extra mile”) during the
strike. It disputed that it had
any ulterior motive in making this
ex
gratia
payment, such as undermining the union’s status as
collective bargaining representative of its members. The payment was
a
purely commercial consideration.
[23]
The union argued that the vouchers were a reward for not striking and
an incentive not to strike in the future. The action
also
discriminated against its members by disadvantaging them for
exercising their right to strike and advantaging employees who
did
not strike.
[24]
The parties accepted that a breach of section 5 (1) required not
merely differential treatment but such treatment had
to be unfair.
The union argued that because it differentiated between strikers and
non-strikers that made it unfair
per se,
and that the vouchers
amounted to giving an ‘advantage’ to the recipients in
exchange for them not exercising their
right to strike, which brought
it with in the ambit of the prohibition in section 5 (3).
[25]
The court held that in interpreting the two provisions it was
important to do so in the context in which the alleged
violations
took place, namely in the context of a protected strike. the
court reasoned:
“
It is not in
dispute that the act of discrimination took place in the context of a
protected strike. Similarly, the advantage allegedly
given by the
respondent was done in the context of a protected strike.
In
other words, for not striking (legally), the respondent paid to the
non-strikers a sum of money.
The
sine qua non
for
the payment of the R200,00 voucher was not so much the hard work
performed by the non-strikers, but the fact that the non-strikers
did
not go on strike and therefore maintained production at a level
sufficient to enable the respondent to commence its annual
shut down
on 16 December 1998 with the customary level of product in stock
.
This must be the case since the non-strikers were otherwise
remunerated for overtime work and working weekends - in the
sum of
R46 000,00.
Put another way, the non-strikers did nothing
extraordinary to warrant additional or extra payment other than that
provided for
in their service contract
s. Indeed, there was
otherwise no other rational or objective basis on which the
additional R200,00 was paid to the non-strikers
other than what was
described by the respondent as thanking the non-strikers for their
“hard work, above the call of duty,
during our industrial
unrest in December last year”.
[26]
In
concluding that the employer had breached both s5(1) and s 5(3), the
court regarded the differential treatment of the strikers
as akin to
an act of discrimination on a prohibited ground, which is presumed
unfair unless the contrary may be established according
to the
Constitutional Court decision in
Harksen
v Lane NO & Others
[17]
.
[27]
Secondly, the court pertinently noted that:
“
19. One is
however assisted somewhat by the provisions of section 10 of the Act
which provides in sub-section (a) that in
proceedings before this
Court a party who alleges that a right or protection conferred by
Chapter II has been infringed must prove
the facts of the conduct;
and (b), the party engaged in that conduct must then prove that the
conduct did not infringe any provision
of this Chapter. In this
matter, the facts have been agreed and it is indeed common cause that
following a lawful strike
in December 1998, the respondent employer
paid to the non-strikers (including at least one union member) the
sum of R200,00.
The applicants allege that the employees’
right to strike conferred by section 64 of the Act has been infringed
thereby.
Section 10(b) of the Act then provides that the party
engaged in that conduct, i.e. the respondent in this case, must then
prove
that the conduct did not infringe any provision of Chapter II.
“
20. In my
view, where a person (such as the respondent employer in this case)
discriminates against employees (such as the
individual applicants)
for exercising their right to strike which is conferred by this Act,
then the unfairness of that discrimination
is presumed although the
contrary may still be established. In this regard it is
analogous to discrimination on one of the
grounds specified in the
Constitution, the unfairness of which is presumed until the contrary
is established (Harksen supra at
para 48).
In my view
therefore it is not necessary at the section 10(a) stage of the
proceedings in this Court, for the party alleging the
infringement to
prove, for example, that the discriminatory conduct was or is
actuated by an illicit reason or by an ulterior motive
on the part of
the respondent employer.
”
[28]
S 10 of the LRA reads:
“
10 Burden of
proof
In any proceedings-
(a)
a party who alleges that a right or protection conferred by this
Chapter has been infringed must prove the facts
of the conduct; and
(b)
the party who engaged in that conduct must then prove that the
conduct did not infringe any provision of this Chapter.”
National Union of
Mineworkers v Namakwa Sands - A Division of Anglo Operations Ltd
[18]
[29]
In this
case, this court essentially followed the approach adopted in
Pets
Food.
Unlike
the latter case, the offending benefits were paid to non-strikers
during the strike, which lasted more than a month. Another
difference
was that the court also found that section 187 (1) (a) and (b) of the
LRA which prevents an employer from dismissing
an employee who
refuses to do the work normally done by striking worker, indirectly
prohibited an employer from asking non-striking
workers to do such
work
[19]
.
[30]
The mine
operated on a continuous basis. Eight days into the strike,
non-striking staff were redeployed to perform operational duties
to
maintain production, for which they received a daily redeployment
allowance of R 300. They also receive meals when they performed
overtime. The court found that the employer could not explain why
this ad hoc redeployment allowance was only paid to employees
who
worked during strikes. It found that the allowance was simply an
incentive for other employees not to join the strike action
and, in
fact, had the effect of some of the strikers returning to work to
obtain the allowance. The employer’s conduct amounted
to a
contravention of section 5 (3) of the LRA
[20]
.
It had discriminated against the union’s striking members and
had failed to prove that its conduct did not infringe the
provisions
of s 5 of the LRA
[21]
. The
court made an order prohibiting the payment of the daily allowance,
the provision of free meals and abnormal overtime wages
on the basis
that it contravened s 5(1), 5(2)(c) (i) and 5(3) of the LRA
[22]
.
Ngcobo and Others v
Chester Butcheries
[23]
[31]
This is the
last in the line of cases following the approach in
Pets
Food
and
applying the test set out in section 10 of the LRA to determine if a
contravention of s 5 had taken place. The employees had
participated
in a protected strike during 2010 and did not receive their normal
discretionary bonus for that year. This, they believed
was a punitive
measure because they had participated in the strike. However, in this
instance the court found that they were unable
to even establish a
prima facie case that the non-payment of the bonus was because they
had participated in the strike
[24]
.
The court accepted that there was evidence at certain stores of
employees who had participated in the strike receiving the bonus
and
the bonus was based on the financial performance of each of the
employer’s stores
[25]
.
Safcor Freight (Pty) Ltd
t/a Safcor Panalpina v SA Freight & Dock Workers Union
[26]
[32]
This LAC
decision signalled something of a sea change in the
approach to these type of cases . No longer is the
analysis of
a breach of s 5 based on the previous interpretation of the test in
s10 of the LRA. Instead, the LAC adopted an approach,
which echoes
some of the thinking in the pre-LRA decisions in
OK
Bazaars
and
CWIU
cases. In
Pets
Products, Namak
wa
Sands and
Ngcobo
,
the approach was to firstly to identify if the differential treatment
of strikers had been established (in
Ngcobo
it was
not) and then to determine if the reason for discriminating against
them was because they had engaged in strike action. In
terms of the
LAC’s approach the first stage of proving the existence of
discriminatory action remains, but instead of merely
deciding if the
reason for the discrimination was the employees participation in the
strike, the employer is require to show that
the discriminatory
conduct was ‘unjustifiable’ because it was irrational,
lacking in proportionality, unreasonable
or actuated by improper or
irrational motives
[27]
. The
LAC invoked the principle that, despite the absence of the word
‘unfairly’ in s 5, “
our
constitutional and anti-discrimination jurisprudence
generally
require
that discrimination be unfair and/or unjustifiable in order to
constitute an infringement or violation.
”
[28]
[33]
The onus
for establishing the justifiability of the discriminatory conduct
remains that of the employer
[29]
.
In this respect, the LAC’s approach is consistent with the
structure of s 10, which requires the employee party to prove
the
conduct complained of and the employer to prove that the conduct did
not amount to a breach of s 5. What is less clear, with
respect, is
why the LAC decided that the second part of the test is not to
determine if the reason strikers were penalised
because they went on
strike, which can be difficult enough to do where mixed motives
exist, but whether the employer can
justify the differentiation on
the basis that it was not irrational, lacking in proportionality,
unreasonable or actuated by improper
or irrational motives.
[34]
It is apparent from the LAC decision in
Safcor
that it made no
reference to s 10 of the LRA, nor to any of the judgments in
Pets
Foods, Namakwa Sands
or
Ngcobo
. Consequently, in so far as
the requirement of justifiability might be assumed to have replaced
the requirement of proving that
the discriminatory conduct did not
amount to an infringement of s 5, the reasons for this were not made
explicit by the LAC
.
[35]
In
Safcor
, the discriminatory conduct complained of what that
the employer granted a 4.5% mid year increase only to non union
employees,
and made it conditional on not joining the union. The
company took the decision in early August 2007 and applied it
retrospectively
to 1 July that year. At the same time, the annual
wage review of non-unionised staff was changed to 1 July each year. A
critical
condition of receiving the increase was that it was subject
to a “condition precedent”: if the employee joined the
union (thus entering the bargaining unit) any time between 1 July
2007 and 30 June 2008, the increase would cease at the end of
the
month of joining, and the employee’s pay would revert to the
level before the 2008 non union cycle increase.
[36]
On 8 August
2007, the company wrote to all non union staff in Durban,
awarding a 4.5% increase backdated to 1 July 2007 and
simultaneously
changing their annual wage review date from January to July.
Crucially, this increase was subject to a “condition
precedent”: if the employee joined the union (thus entering the
bargaining unit) any time between 1 July 2007 and 30 June
2008, the
increase would cease at the end of the month of joining, and the
employee’s pay would revert to the level before
the 2008
non union cycle increase. The employee would then only receive
increases negotiated by the union (effective until
31 December
2008).
[30]
[37]
The union communicated that its members were agreeable to changing
their incremental date to 1 July, but the company
refused to amend
the union’s 2007 wage agreement before the next annual
negotiations, while it simultaneously amended the
non union
employees’ terms by moving them to the July cycle and granting
the 4.5% increase.
[38]
In
consequence, a unionised employee earning R 10,000 per month, would
receive approximately R 5,000 less that a non-union member
over the
18-month period starting from January 2007. The court found
the
employer’s conduct “
provided
a strong inducement to non union members not to exercise their
right to join the union”
and was an inducement for union members to resign to obtain the extra
4.5 5 benefit, which had the potential of undermining the
union as a
bargaining agent.
[31]
The
court rejected the employer’s argument that the differentiation
was simply between different bargaining units, because
it was a
differentiation based on union membership
[32]
.
It also rejected the rationale advanced by the employer that the
differentiation was for reasons of efficiency, managerial resource
planning and holding the union to its agreement as “
vague,”
“opaque,”
and inconsistent, especially given the union’s expressed
willingness to align to the July cycle
[33]
.
[39]
The
conduct amounted to anti union discrimination prohibited by
sub-section 5(2)(c)(i), by prejudicing employees on account
of their
union membership, and by s 5(3), because it advantaged employees in
exchange for not exercising LRA right to join a union
[34]
.
[40]
The
LAC did not expressly make a finding that Safcor’s
discriminatory conduct was irrational, lacking in proportionality,
unreasonable or actuated by improper or irrational motives. However,
it implicitly rejected the employer’s attempt to rationalise
the measure as irrational, noting that “
differentiation
must be supported by a commercial rationale
”
[35]
,
and implied that the employer’s motive was improper in that it
was to induce non-members not to exercise their right to
join a
union
[36]
. In all probability,
the same conclusion would have been reached by determining if the
employer had contravened s 5 because of
the reason it implemented the
measure.
National Union of
Mineworkers v Cullinan Diamond Mine (A Division of Petra Diamonds
(Pty) Ltd)
[37]
[41]
Because the LAC decision in this case supersedes the labour court
decision, which it confirmed, and that in most key
respects the
reasoning of both courts are in conformity with each other, the
discussion will concentrate on the LAC decision.
[42]
The essential facts of the case are as follows. A strike took place
for 12 working days. It ended on 15 September 2013.
There was an
annual pre-existing discretionary bonus, which was linked to audited
company-wide production and financial targets,
normally payable in
September. The employer warned employees before the strike that
payment of the bonus was dependent not only
on the audited results
for the 2013 financial year, but also on “
the successful
settlement of the wage negotiations for the 2014FY without the
negative impact of a strike
”. The notice continued:
“
The strike will
definitely impact the quantity of this bonus negatively. The choice
whether to partake in the strike or to come
to work remains the
choice of each and every employee.
The negative impact of
the strike on the company as well as the bonus of employees will be
reduced if revenue could be safely generated
during the strike
period. Employees who decide to come to work and assist the mine to
generate revenue during this period by performing
alternative and
additional duties in an exceptional manner would be considered for an
additional payment.”
[38]
[43]
After the
strike, the annual bonus was scrapped, but an exceptional performance
bonus was paid to all employees who had worked one
day or more during
the course of the strike and had contributed to exceptional
productivity and performance during the strike.
Evidence was led
that, during the strike, the mine had achieved 52 % of its production
level with only 34% of the man hours it
would normally have worked.
Although queried, these figures could not be disputed and the mine
maintained that the bonus
was paid not only for working during the
strike, but also for their performance in in minimising the effects
of lost production
[39]
.
[44]
The union
contended that
the
payment of the bonus was a breach of s 5(2)
(c)(
vi)
and s 5(3) of the LRA, read with ss 6 and 10 of the EEA and amounted
to unfair discrimination.
The LAC pronounced definitively that discrimination involving
employees’ exercising rights under the LRA is governed
principally
by s 5 of the LRA, and the EEA does not apply to such
disputes
[40]
.
[45]
The LAC followed
Safcor
’s reasoning and stated that the
issue on appeal was whether the payment of bonusses amounted to
unfair discrimination under
s 5.
[46]
On this
occasion, the LAC referred to the
CWIU
decision,
noting the similarities between that case and the case before it,
namely the decision early in the strike to reward those
who worked
longer hours and the fact that it was an exceptional bonus which
allowed operations to continue. The court noted with
approval the
Industrial Court’s reasoning that there are compelling economic
reasons why an employer should be entitled to
reward employees who
worked during a strike, and that where the purpose of the payment was
to preserve its operations, not to penalise
strikers there could not
be any talk of victimisation.
[41]
The LAC also alluded to the Appellate Division’s reasoning in
the
OK
Bazaars
case,
with approval, namely that the freedom to strike was a necessary
ancillary to effective bargaining, but that did not preclude
an
employer from offering financial inducements to workers to refrain
from striking, dependent on the circumstances. After citing
these
decisions, the LAC then posed the question, whether s 5 of the LRA
required a different approach towards rewarding non-strikers,
given
that those judgments were dealing with unfair labour practices.
[47]
While
noting the decisions in
Namakwa
Sands
and
Pets
Foods,
the LAC observed that there “
there
is no general express provision in the LRA or elsewhere outlawing the
practice of paying bonuses to non-strikers. The issue
is whether that
practice is unfairly discriminatory.
”
[42]
[48]
After the strike, the company announced that, due to the strike’s
negative impact and failure to meet the usual
criteria (production,
profitability, audit confirmation, and a period free of major
disruptions), no annual bonus would be paid.
The LAC accepted that
the differential impact of the bonus payment in the dispute before it
was discriminatory, and then considered
whether that conduct
undermined the union as a bargaining agent or whether it was merely a
retaliatory measure forming part of
the power play during a strike.
It held that it was no more objectionable than the use of replacement
labour. The court held:
“
The unilateral
offer of bonuses or additional overtime payments to non-strikers (who
may not be members of the union) is no more
or less objectionable
than the employment of replacement labour, provided the measures are
suitable and necessary (proportional)
for that purpose.”
[43]
[49]
The LAC concluded:
“
(28) … By
reason of its temporary retaliatory nature, and the computation of
the bonus being explicitly tailored to attendance
and performance for
the limited period of the strike, the bonus was a proportional means
of advancing the respondent’s collective
bargaining objectives.
(29) As such, the
respondent’s conduct did not unfairly discriminate against or
prejudice the striking employees; nor did
it unfairly advantage the
non-strikers without legitimate reason.
The non-strikers were not
advantaged for not exercising their right to strike. They were
advantaged for their attendance and exceptional
performance during
the strike. But for the exceptional performance the bonus would not
have been paid
.
Accordingly, the respondent’s
conduct was not an infringement of the relevant provisions of s 5 of
the LRA.”
(emphasis added)
[50]
With
Cullinan
the law seems to have come full circle. The test
first set out in
Safcor
has now been fleshed out to make it
clear that if an employer can withhold a benefit from strikers and
correspondingly offering
it to non-strikers, despite the fact that
this amounts to discriminating between the treatment of strikers and
non-strikers, if
the employer can justify it as a way of discouraging
strikers from engaging in strike action and encouraging employees to
choose
to work, that is an acceptable part of collective bargaining
power play tactics, provided that is a suitable and proportional way
to achieve that aim. If those criteria are satisfied, the
differential treatment of strikers and non-strikers will not amount
to a breach of s 5 of the LRA.
[51]
The difficulty in applying this test, lies in determining when the
tactic of offering an incentive to non-strikers and
a disincentive to
strikers will be a suitable and proportionate response.
[52]
It is only where the advantage offered to non-strikers is patently
disproportional to what the employer wants to achieve
that the
commercial rationality of the measure might be challenged, because
the value of the incentive offered to non-strikers
is notably
disproportionate to the benefit obtained or conversely imposes a
significantly disproportionate disadvantage on the
striking employees
relative to the real impact of the strike, such that its punitive
character is a prominent feature.
[53]
Nonetheless, it means that to successfully defend a claim that such
differential treatment on the basis that it is not
unfairly
discriminatory and not in breach of s5, an employer needs to do more
than simply say it adopted the strategy as a part
of collective
bargaining power play. If that was not the case, all an employer need
do to defeat claims of this nature, is to utter
the incantation that
it is simply an instance of economic power play to overcome the
protection supposedly afforded by s 5, which
risks the provision
becoming nugatory.
Evaluation
[54]
In this instance, the pre-existing
discretionary STI bonus policy provided for the forfeiture of the
bonus in the event of participation
in a strike. Solidarity and
its members were warned before the strike that Heineken would invoke
the provision in the STI
bonus scheme which disqualified employees
who participated in strike action. Plainly, employees who waived
their right to strike,
would have retained their eligibility to
receive the bonus, subject to not forfeiting it for misconduct or
poor performance. They
would have obtained an advantage relative to
strikers who exercised their right to strike and forfeited their
bonus.
[55]
Solidarity argued that the basis for
differential treatment, was also the very reason its members did not
receive the bonus, namely
they did not receive the bonus merely
because they went on strike and that was the entire explanation for
them being deprived of
the bonus.
[56]
Heineken contended that the fact that the
policy was a pre-existing one and that employees were warned they
would forfeit the bonus
if they embarked on strike action somehow
supports its argument that the differential treatment was justified.
It also argues,
as a matter of principle, that withholding the bonus
in the context of collective bargaining was a legitimate exercise of
its power
to decide whether to withhold it. It further argues that
the decision was aimed at preserving operational stability and was
not
based on improper motives.
[57]
However, Heineken’s defence amounts
to little more than stating the general principle that differential
treatment of strikers
and non-strikers is capable of defeating a
claim of unfair discrimination and alleged breach of s 5.
[58]
As mentioned above, under the current test,
the onus rests on Heineken to demonstrate, notwithstanding that it
differentiated between
strikers and non-strikers when deciding to pay
the bonus, that the reason it did so was justified. It needed to
demonstrate that
it was a suitable and proportionate response. It
provided no details of the impact its denial of the bonus would have
on strikers
or on incentivizing workers not to strike. It is worth
noting that this was a strike to obtain organizational rights for
Solidarity,
so it was not one that was likely to have attracted
support from non-members of Solidarity. In the absence of any
explanation of
how the loss of the bonus was a proportionate measure
to deter strike action by Solidarity members which was confirmed by
Heineken
before the strike even commenced. Further, there was
no explanation why it was considered a proportionate response to
completely
deny strikers the bonus when the strike ended after only
two days.
[59]
In the circumstances, I am not satisfied
Heineken has provided an adequate defence to justify why withholding
the STI bonus was
not in breach of sections 5(1), 5(2)(c)(vi) of the
LRA.
[60]
Although it was pleaded that the employer’s
conduct was also a breach of section 5(2)(c)(vii) of the LRA, which
involves prejudicing
an employee for participating in proceedings
under the Act, no case was made out why this provision was breached.
[61]
On the question of costs, this is not an
appropriate case to deviate from the normal practice of not making a
cost award taking
account of principles of law and fairness.
Order
1.
The late filing of the Defendant’s
plea is condoned.
2.
The exclusion of the Plaintiffs in Annexure
X to the Plaintiffs’ statement of claim, from payment of the
STI bonus in 2023
was in breach of
sections 5(1)
and
5
(2)(c)(vi) of
the
Labour Relations Act, 66 of 1995
.
3.
Within thirty (30) calendar days of the
date of this order, the Defendant must provide the Plaintiffs with an
account of the formula
and the supporting documents used to calculate
the 2023 STI bonus payable to each individual Plaintiff, which they
would have received
if they had not been disqualified from receiving
because they participated in a strike, with supporting documents,
4.
Within thirty (30) calendar days of complying with
paragraph 3 of this order, the Defendant must pay the individual
Plaintiffs the
2023 STI bonus, which they would have received if they
had not been disqualified from receiving because they participated in
a
strike, in accordance with the aforementioned formula.
5.
No order is made as to costs.
R
Lagrange
Judge
of the Labour Court of South Africa
For
the Applicant:
N
Ras from Solidarity
For
the Respondents:
C
Nhliziyo from Edward Nathan Sonnenbergs
[3]
Typographical
correction
[4]
(2012)
33
ILJ
2932
(LC)
[5]
At
paragraph 7.
[6]
(2013) 34
ILJ
335
(LAC)
[7]
(2019
)
40 ILJ
1826 (LC)
[8]
At
paragraph 22.
[9]
National
Union of Mineworkers v Cullinan Diamond Mine (A Division of Petra
Diamonds (Pty) Ltd)
(2021)
42
ILJ
785 (LAC)
[10]
(1991) 12
ILJ
599
(IC)
[11]
Page
603
[12]
At
pages 605-6
[13]
[1995] ZASCA 70
;
1995 (3) SA 622
(A); (1995) 16
ILJ
1031
(A)
[14]
At
pages 1036-7
[15]
pages 1038G-1039A.
[16]
(2000) 7 BLLR 781
(LC); (2000) 21 ILJ 1100 (LC)
[17]
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at paragraph 47, cited at paragraph 15 of
Pets
Products.
[18]
(2008) 29
ILJ
698 (LC)
[19]
At
paragraph 40.
[20]
At paragraphs 41 and 42.
[21]
At paragraph 45.
[22]
At
paragraph 54.
[23]
(2012) 33
ILJ
2932 (LC)
[24]
At paragraph 9.
[25]
At
paragraph 6.
[26]
(2013) 34
ILJ
335
(LAC)
[27]
Safcor
at
paragraph 21, cited in paragraph 11 above.
[28]
At
paragraph 11.
[29]
At
paragraph 22.At par
[30]
At
paragraphs 12-13.
[31]
At paragraphs 29-30.
[32]
At
paragraph 31.
[33]
At
paragraphs 23 and 28.
[34]
At paragraphs 30 and 32.
[35]
At
paragraph 28.
[36]
At
paragraph 30.
[37]
(2021) 42 ILJ 785 (LAC).
[38]
At
paragraph 4
[39]
At p
aragraph
5-6.
[40]
At paragraph 8.
[41]
At
paragraph 14.
[42]
At
paragraph 19.
[43]
At
paragraph 26.