IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
In the matter between:- CASE NO. J5099/99
RUSTENBURG PLATINUM MINES LIMITED Applicant
and
THE MOUTHPEACE WORKERS UNION Respondent
J U D G M E N T
CORAM FARBER, A.J.:
Reliant on the provisions of Section 68(1)(b) of the Labour Relations Act, No. 66
of 1995, the Applicant, on the 14th December 1999, instituted proceedings for
the payment of compensation in the sum of R15 370 000,00. The matter was
opposed. It was ultimately referred to the hearing of oral evidence, which took
place before me on the 8th and 9th May 2001.
At the outset, I ought to make reference to three matters which had an impact
on the proceedings. Firstly, the Applicant, in the formulation of its claim, relied
upon two strikes said to have taken place on the 21st April and the 26th
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October 1999 respectively. At the close of the Applicant's case, Mr. Cassim on
its behalf abandoned reliance on the strike of the 26th October 1999. In the
result, the events surrounding it need not be considered in this judgment.
Secondly, the Respondent, as one of its defences to the claim flowing from the
strike alleged to have occurred on the 21st April 1999, contended that the
matter had been settled and that in consequence the Applicant was precluded
from seeking compensation for the loss said to have been sustained in respect
thereof. During the course of the trial, the Respondent abandoned reliance
thereon. Similarly, it need no longer be referred to. Finally, Mr. Cassim limited
the Applicant's claim to the sum of R100 000,00.
The facts germane to the determination of the dispute are largely common
cause and may be detailed thus:-
The Applicant carries on business in the mining of platinum in the North West
Province. It does so from several mines, each of which is geographically
dislocated from the other. Moreover, each is under separate management, at
least insofar as its day-to-day activities are concerned. Two of them are known
as Union and Rustenburg, and the distance from the one to the other is of the
order of twenty-six kilometres. The Applicant is the largest producer of
platinum in the world and operates on a three shift system, comprising of a
"day shift" , from 05h30 to 13h30, an "afternoon shift" , from 13h30 to
21h30 and a "night shift", from 21h30 to 05h30.
The Respondent is a duly registered trade union.
On the 24th February 1998 the Applicant and the Respondent concluded a
written recognition and procedural agreement. I do not intend analysing the
agreement in any detail. What is plain is that it manifestly, in the clearest of
language, regulates the manner in which grievances and disputes are to be
dealt with. Responsibility, orderliness and lawfulness in terms of clearly
defined procedures are at the forefront of it all.
I pause to observe that the Respondent is one of several trade unions
recognised by the Applicant. At the time of the occurrence of the events
seminal to the dispute, some 13,000 of the Applicant's workforce of 30,000
were members of the Respondent. Plainly, and in terms of representation in
the workplace, the Respondent was then by far the largest and strongest of the
trade unions which had been accorded recognition by the Applicant. In
parenthesis, it may also have been the most troublesome.
Following upon certain industrial action which took place in January 1999 and
an apprehension that such conduct would be persisted in, the Applicant, on the
4th February 1999, sought and obtained temporary interdictory relief against a
very great number of the Respondent's members. The relief was extensive in
nature and, inter alia, interdicted the Respondent and its members from
promoting, inciting, instigating and/or participating in unprotected strike
action. The order was made final on the 4th March 1999.
On the 19th April 1999 members of the Applicant's management received a
3
report to the effect that the workforce intended embarking on a strike on the
morning of the following day. As a result thereof, Mr. M. Badenhorst, a senior
coordinator in the Industrial Relations Department of the Applicant, telephoned
Mr. P. Joubert, the Respondent's principal executive officer. Mr. Badenhorst
advised Mr. Joubert of the reports which had been received and sought clarity
on the veracity thereof. According to Mr. Badenhorst, Mr. Joubert was evasive
and would not commit himself, either one way or the other. He did, however,
articulate a number of demands which the workforce wished the Applicant to
address.
Attempts were thereafter made by the Applicant to convene a meeting
urgently with representatives of the Respondent. Little, so it seems, came of
this. Moreover, a meeting which had by prior arrangement been scheduled to
take place between Mr. David Mwalanda, the Respondent's general secretary,
and Mr. M. Appelgryn, the Applicant's human resources manager for
Rustenburg, was cancelled by Mr. Joubert. This occurred despite the
availability of Mr. Mwalanda to attend it. At the time of cancellation, Mr.
Appelgryn was en route to attend the meeting. He was accompanied by Mr. A.
Geldenhuys, a human resources consultant who then held a general
engagement with the Applicant. Both intended raising the Applicant's fears in
relation to the possibility of a strike with Mr. Mwalanda.
During the course of the 20th April 1999 a number of "mass" meetings
involving the workforce took place.
The reports which the Applicant had received were not misplaced, for on the
20th April 1999, at 20h30, the Applicant's workforce at Union and Rustenburg
embarked on a strike. It involved both members of the Respondent and of the
other trade unions which had been accredited by the Applicant. The "night
shift" of that day did not report for work. Nor did the "day shift" of the
following day.
On the morning of the 21st April 1999 Mr. Mwalanda received a report to the
effect that the Applicant's workforce was on strike. He immediately proceeded
to one of the Applicant's mines where he addressed a segment of the
workforce. He listened to its demands and then prevailed upon them to return
to work. They undertook to do so immediately. This, however, did not occur
until a very much later stage.
During the course of that morning, Mr. Joubert arranged for representatives of
the Respondent to meet the Applicant later that day so that the demands of
the workforce might be addressed. Mr. Joubert at the time expressed the view
that if the demands were resolved, he was confident that the workforce would
return to work that evening.
As had been the case on the previous day, a number of "mass" meetings
involving the workforce took place during the course of the morning and
afternoon of the 21st April 1999. The Applicant videoed and voice recorded
one of these meetings. During the course of that particular meeting, Reverend
Lee Tsheme and Mr. D. Coetzee, two members of the Respondent's National
5
Executive Committee, urged workers not to return to work until their demands
had been satisfied.
The Applicant again sought recourse to the Courts. An interdict was obtained
as a matter of urgency on the 21st April 1999, and copies of the relevant order
were distributed to the workforce by the Sheriff.
Shortly thereafter, one of the other trade unions which had been accorded
recognition in the workplace, the National Union of Mineworkers ["NUM"],
addressed two letters to the Applicant disassociating itself from the strike
which was then still in progress.
On the 21st April 1999, at approximately 13h00, the Applicant met with
members of NUM's local branch. They expressed concern in regard to the
strike and distanced themselves from it, indicating that it did not enjoy their
support. They indicated that members of NUM had through intimidation been
precluded from tendering their services to the Applicant.
On the same day, at 15h30, a meeting took place between the Applicant and
the Respondent. This occurred pursuant to the arrangement which Mr. Joubert
had concluded earlier that day. The meeting was of undoubted importance
and the Respondent was represented thereat by Mr. P. McLeod, a member of
its National Executive Committee, Mr. B. Sekoto, the head of its legal
department, Mr. G. Sinaphula, one of its regional chairpersons, and some
twelve workers' representatives. Mr. P.W. Coetzer, the Applicant's business
manager, addressed the meeting and alluded to the circumstances which had
given rise to the convening thereof. Mr. McLeod then proceeded to read from a
memorandum which had been compiled by the workforce or on its behalf. This
memorandum detailed the demands of the workforce. The meeting was then
adjourned for a short while, apparently to permit management to discuss the
demands which had been raised.
On the resumption thereof, Mr. Coetzer addressed the meeting in the following
terms:-
"We are disappointed with the way your Union have expressed your concerns. I am
convinced that if we had the same discussions previously we could have prevented
the situation. On the one hand you care for your members, but your actions deprived
them of one day's pay. We as management also care for our employees and we
believe the situation could be prevented. It is my perception that the stay-away was
instigated by M.P.W.U. Head Office yesterday when mass meetings took place . Living
out employees arrived on the mine this morning without knowing of any protest
action. However, it is done." [my emphasis]
These statements were not challenged by the Respondent's representatives.
Mr. Coetzer then proceeded to address the demands which had been raised
earlier. During the course thereof, and thereafter, he alluded to the possibility
of the Applicant instituting disciplinary proceedings against those members of
the workforce who had participated in the strike. The meeting was again
adjourned. During the course of that adjournment, representatives of the
Respondent addressed the workforce and instructed it to return to work, a call
which was apparently heeded shortly thereafter.
On the resumption of the meeting, the question of possible disciplinary action
7
was again raised. The Respondent expressed its disquiet in regard to that
possibility. Mr. Sekoto pressed the issue on its behalf. He stated that he
wanted ".... clarity on the disciplinary action". He continued in the
following terms:-
"We don't know how you are going to address the masses. Be open and tell us your
actions as we are in a corner now."
Mr. Coetzer's response was immediate and forthright. He stated that -
"You people placed yourself in the corner. You took the decisions. I will take the
action."
The reference therein to "you" was a plain reference to the Respondent. Its
representatives did not then seek to controvert what had been said by Mr.
Coetzer.
The strike at both Union and Rustenburg terminated at approximately 19h00
when the workforce on "night shift" reported for duty.
By reason of the strike, the Applicant lost production, and thus profits. Its loss,
in respect of both Union and Rustenburg, was quantified in an amount of not
less than R15 000 000. It may well have been considerably more.
On the 9th July 1999 the Respondent advised the Applicant that Rev. Tsheme
and Mr. Coetzee had been dismissed and were no longer authorised to
represent it.
Before leaving the seminal facts, two observations are pertinent. Firstly, the
meeting of the 21st April 1999 between the Applicant and the Respondent was
mechanically recorded. A minute reflecting what had transpired thereat was
then compiled. Witnesses from both sides confirmed that the minute
accurately reflected what had in fact transpired, save that it was wrong to the
extent that it suggested that in detailing the demands of the workforce, Mr.
McLeod spoke in his own words. He was in fact reading from a memorandum
which had been compiled by the workforce or on its behalf. Secondly, the
authenticity of the video footage to which I have referred is not in issue. What
was in issue was whether the events depicted thereon occurred on the 21st
April 1999. Counsel, on behalf of the Respondent, suggested in his cross-
examination of at least two witnesses called on behalf of the Applicant, that
the footage might not relate to an occurrence on the 21st April 1999, but to an
occurrence on some other occasion. As to when that might have been was not
alluded to. The witness, who was present at the time, was for good reason
emphatic that the footage related to a meeting held on the 21st April 1999,
and in the absence of evidence to the contrary, I have no hesitation in
accepting what he said.
The relevant provisions of Section 68 read as follows:-
"68. Strike or lock-out not in compliance with this Act.- (1) In the case of any
strike or lock-out, or any conduct in contemplation or in furtherance of a strike or
lock-out, that does not comply with the provisions of this Chapter, the Labour Court
has exclusive jurisdiction-
(a) to grant an interdict or to restrain -
(i) any person from participating in a strike or any conduct in contemplation or in
furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in contemplation or in
9
furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any loss attributable to
the strike or lock-out, having regard to-
(i) whether-
(aa) attempts were made to comply with the provisions of this Chapter and the extent of
those attempts;
(bb) the strike or lock-out was premeditated;
(cc) the strike or lock-out was in response to unjustified conduct by another party to the
dispute; and
(dd) there was compliance with an order granted in terms of paragraph (a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out; and
(iv) the financial position of the employer, trade union or employees respectively.
(2) ..........
(3) ..........
(4) ..........
(5) .........."
It is manifest that in relation to a strike, three requirements must be satisfied
before the questions, whether compensation as contemplated in sub-section
1(b) is to be awarded, and if so, in what amount, arise for determination. In
the first instance, it must be established that the strike does not comply with
the provisions of Chapter IV of the Act. Secondly, the party invoking the
remedy must establish that it has sustained loss in consequence of the strike.
Thirdly, it must be demonstrated that the party sought to be fixed with liability
participated in the strike or committed acts in contemplation or in furtherance
thereof. This much is evident from the provisions of sub-section 1(a) which, in
its delineation of the nature of the acts which might legitimately form the
subject matter of an interdict or restraint, identifies who might be held
accountable therefor. The Legislature plainly intended to embrace the same
class in relation to the Court's competence to award compensation.
It is common cause that the strike on the 21st April 1999 did not comply with
the provisions of Chapter IV and that the Applicant sustained loss in
consequence of it in an amount of at least R15 000 000,00.
The third requirement is in issue and the question whether it had been
established forms the real essence of the dispute before me. On this score, the
stance of the Respondent was encapsulated in paragraph 76.2 of the
answering affidavit deposed to by Mr. Mwalanda in the proceedings. He, in
relation to the strike which commenced on the 20th April 1999, said the
following:-
"76.2 The strike action was not at the insistence or instigation of the Respondent, and the
Respondent at all times, acting as responsible trade union, persuaded employees to
return to work."
He went on to record the following in paragraph 81.1:-
"81.1 The Respondent was not a party to the events of 20 and 21 April 1999, prior to being
asked by Applicant to assist in resolving the matter. The matter was resolved after
the intervention of the Respondent."
It is manifest from what occurred at the meeting of the 21st April 1999
between the Applicant and the Respondent that Mr. Coetzer on behalf of the
Applicant, in clear and unequivocal terms, made it plain that he considered
that the strike had been instigated by the Respondent. He did so on two
occasions. The representatives of the Respondent did not demur or protest on
either occasion and did nothing to controvert what Mr. Coetzer had said.
11
During the course of his evidence, Mr. Sekoto advanced the reason for the
Respondent's omission in that regard. He said that it would have been
impolitic and imprudent for it to side with management against the striking
workforce. I have difficulty in grasping this explanation. The correction of a
palpably wrong statement would in my view not have constituted an
alignment of the Respondent with management to the detriment of the
workforce. Indeed, such pronouncement would not only have served to
exculpate the Respondent from all blame in relation to the strike and its
consequences, but may have tended to place the workforce in a more
favourable light. Recourse by a workforce to strike action, without any
intervention or involvement on the part of their union, may be indicative of a
very high level of frustration on its part. The explanation sought to be
advanced is in my judgment lacking in candour. It represents little more than
an ex post facto attempt to seek to undo the consequences of the
Respondent's failure to make its position known at the first available
opportunity. I cannot accept the explanation as truthful. In my view, the
circumstances of the situation were such that had the Respondent not
instigated the strike, it would have so proclaimed in the clearest of terms. Its
failure to have done so must in my judgment constitute an admission on its
part that it in fact instigated the strike. [As to the circumstances under which a
failure to speak may found an admission, see generally Benoni Produce and
Coal Co Ltd v Gundelfinger 1918 TPD 453; Benefit Cycle Works v Atmore 1927
TPD 524; East Asiatic Co (S A) Ltd v Midlands Manufacturing Co (Pty) Ltd
1954(2) SA 387 (C).]
This conclusion is in my judgment supported by the general probabilities of the
case. Firstly, and on uncontroverted evidence which I have no hesitation in
accepting, Mr. Joubert, the Respondent's principal executive officer, was
evasive when Mr. Badenhorst, on the 19th April 1999, sought clarity on the
report which had been received, to the effect that the workforce intended
striking on the morning of the following day. Mr. Joubert's evasiveness and his
reluctance to commit himself, either one way or the other, tends, I think, to
suggest that he already knew of the possibility of a strike. Despite this, he
failed to distance himself from it, but chose to detail the demands of the
workforce. Secondly, during the course of the strike itself, two members of the
Respondent's national executive committee urged the segment of the
workforce which they addressed not to return to work until its demands had
been satisfied. This is hardly consonant with the state of affairs referred to by
Mr. Mwalanda. Thirdly, it is clear that the strike was orchestrated. I say this
because Union and Rustenburg are separated by some 26 kilometres and the
strike commenced at each of them at the same time. There is no suggestion
on the evidence how this might have come about other than through the
involvement of the Respondent.
I am mindful of Mr. Mwalanda's testimony to the effect that on learning of the
strike he sought to intervene in the matter, and that insofar as the strikers
which he addressed are concerned, he urged them to return to work. He may
not have supported the strike initiative, but he seems to have been alone in
this attitude. What is, however, plain is that despite the workers' undertaking
to Mr. Mwalanda that they would return to work immediately, this did not
13
occur. It seems that there was a larger force in play. It is also instructive that
the grievances which were furnished to Mr. Mwalanda differed quite radically
from those which Mr. McLeod, on behalf of the Respondent, submitted to
management later that day. I am not satisfied that the impact and cogency of
Mr. Mwalanda's evidence is such as to disturb the reliability of the admission
made at the meeting to which I have referred.
I consequently find that the Respondent in fact instigated the strike of the 21st
April 1999 and thereafter committed acts in furtherance thereof. This falls
squarely within the provisions of Section 68(1)(b).
I now turn to the question whether compensation ought to be awarded, and if
so, in what amount. This must be adjudged in terms of the considerations
detailed in sub-paragraphs (i)(aa), (bb), (cc), (dd), (ii), (iii) and (iv) of Section
68(1)(b).
Before turning to a consideration of these factors, some general comments are
perhaps apposite. The Legislature has conferred a very wide discretion on the
Court. It is circumscribed only to the extent that the result achieved must be
"just and equitable". This means no more than that it must be fair. The sub-
section, and thus the discretion which is to be exercised thereunder, is
designed to compensate an aggrieved party for the loss actually suffered.
Such compensation is in the nature of recompense [Foodpiper CC t/a Kentucky
Fried Chicken v Shezi (1993) 14 ILJ 126 (LAC)]. It is not penal in character.
However, the various factors which must be considered in the exercise of
discretion make it plain that if compensation is awarded it need not necessarily
equate to a full indemnity for the loss suffered. So much so is evident from the
structure of the sub-section and the factors therein referred to. They postulate
that the result in any particular case will turn on its own facts. On this score, it
is plain that much of the enquiry is subjective in nature, involving an
assessment of the gravity (or the lack thereof) of the conduct complained of,
and the blameworthiness of the person sought to be held accountable therefor.
I now turn to a consideration of the factors relevant to the exercise of the
discretion.
1. COMPLIANCE WITH THE PROVISIONS OF CHAPTER IV OF THE ACT
No attempt whatsoever was made by the Respondent to comply with the
relevant sections of Chapter IV of the Act. Its breach was in the circumstances
gross.
2. PREMEDITATION
I have little doubt that the strike in question was premeditated, although it is
difficult to determine the extent thereof. Plainly, on the 19th April 1999, a
strike was potentially in the offing, so much so that the Applicant sought to
intervene with the Respondent and secure information in regard thereto. It
admits of little doubt that the strike was orchestrated, and it can hardly be co-
incidental that the workforce, at two separate mines some 26 kilometres apart,
commenced striking simultaneously. The circumstances are such that it
cannot be said that the strike was spontaneous in consequence of a decision
15
taken on the spur of the moment.
3. UNJUSTIFIED CONDUCT BY ANOTHER PARTY
The demands of the workforce, as articulated by Mr. McLeod at the meeting of
the 21st April 1999, were encapsulated in the minutes of that meeting thus:-
"We are all aware of the protest action, which is all about grievances never attended
to or prolonged purposely. We want the relevant people to take note thereof and to
attend to each problem, which is as follows:
1.Provident Fund Task Team
The Provident Fund Task Team was originated by MPWU and should only be
composed by members of MPWU and not NUM as required by Management of
Amplats.
2.Financial Institutions
We are all aware of certain financial institutions which offer micro loans to employees.
Boland Bank was introduced by NUM, MPWU reacted and introduced Capital Alliance.
Benefits of our members and your employees are important to us. We now obtained
a better offer from Unibank and we consulted Amplats Head Office to introduce
Unibank. Mr Beamish held a meeting with EXCO and he advise(sic) me that there is
no problem. He proceeded on leave. Mr King then phoned me and said everything
has been arranged. He requested a copy of the stop order facility for deduction
purposes. I faxed it to him. Thereafter Mr Roland van Kerckhoven informed me that
the matter was now under his jurisdiction.
I spent 2-3 days in Johannesburg trying to finalise the matter with Amplats Head
Office. We eventually got the feeling that Amplats Head Office just wanted to
postpone the matter. We received a letter from Mr R Van Kerckhoven who want us to
enter into an informal contract. From my previous experience with Capital Alliance I
know what this informal contract was. Capital Alliance was too slow to assist our
members. After investigations we found that Capital Alliance and NUM entered into
an agreement. We assume that Capital Alliance purposely delayed the process to
an agreement. We assume that Capital Alliance purposely delayed the process to
assist our members. Therefore I request you to assist us to get the Unibank
agreement. We have already ± 1 500 loan applications in the pipeline.
In the past NUM never had any opposition and Teba Bank was therefore introduced.
MPWU is now the majority Union on the Mine and we request negotiations to open our
own Banking institution to replace Teba.
3.Negotiations with Amplats Head Office
It is our Union's view that negotiations at our and your Head Offices only waste time.
Amplats Head Office is just `a picture on the wall' as they don't know what is going
on. R.P.M. Bleskop Mine is responsible to make decisions and they can summon
Amplats Head Office if required. Employees feel it takes a long time to resolve
problems. It is important for MPWU that members must come first.
4.Forceful Retrenchment exercises
Numerous pension and redundancy exercises taking place on the Mine must stop with
immediate effect until our Head Office receive a clarification from Mr Eric Ngubane.
5.Wage increase
We demand a 4% increment from January 1999 in addition to our increase in 1998,
without the two year agreement. We enter into this protest action to indicate to you
that we must start negotiations with our Head Office.
We demand immediate response on our demands as we believe that our reasons are
enough for the protest action taken."
Despite the allegation therein to the contrary, no evidence was placed before
me which even remotely suggests that the Applicant had been intransigent in
regard to the issues in question. Nor was there any suggestion that it was
unwilling to engage in dialogue in an endeavour to resolve them. In short, no
cognisable evidence to the effect that the strike was in response to unjustified
conduct on the part of the Applicant was adduced.
4. INTERDICT PROCEEDINGS
As I have indicated, an interdict against the members of the Respondent was in
place at the time of the commencement of the strike on the 21st April 1999.
Despite this, the strike was initiated. A further interdict was obtained during
the course thereof. It did not serve to dampen the enthusiasm of the
Respondent and its members in regard to the continuation of the strike.
17
5. THE INTERESTS OF ORDERLY COLLECTIVE BARGAINING
In my view, the strike in question was a serious one. So much so appears from
my analysis of the factors already addressed. The Respondent was the
instigator thereof and, to be sure, its conduct was highly irresponsible and
totally erosive of orderly collective bargaining. It seems to me that the
Respondent requires reminder that the interests of security in the workplace
are best promoted by stable and ordered action in terms of procedures
sanctioned by law. Recourse to other stratagems can only serve to bedevil
sound labour relations to the prejudice, not only of the parties involved, but to
the economy as a whole. A loss of R15 000 000,00 is no trifling matter.
6. THE DURATION OF THE STRIKE
The strike was short lived. To the Respondent's credit it, through its influence,
eventually brought it to an end.
7. THE FINANCIAL POSITION OF THE APPLICANT AND RESPONDENT
I have already referred to the activities of the Applicant. I have no reason to
suppose that its financial position is other than extremely strong. In contrast,
the Respondent is barely solvent. I have no doubt that an award for
compensation will bear very heavily on it. However, and as will presently
emerge, an order for compensation is open to amelioration through recourse to
a periodic payment structure.
Weighing up all these factors, and affording to them such weight as I must, it
seems to me that a proper case for the award of compensation has been
established by the Applicant.
As to the amount, the Applicant has limited its claim to the sum of R100
000,00. This falls well within the upper limit of what I would have considered
fair in all the circumstances. I accordingly intend directing the payment of
compensation in that amount. Counsel referred me to Section 158(1)(j) of the
Act and were agreed that it permitted me to direct that the compensation
awarded be discharged in monthly instalments. I propose giving effect thereto.
Costs will follow the event.
The following orders are made:-
1. The Respondent shall pay the Applicant the sum of R100 000,00 in monthly
instalments of R5 000,00.
2. Payment of the instalments referred to in paragraph 1 shall commence on the
7th September 2001 and shall thereafter be paid consecutively on the 7th day
of each succeeding month.
3. The Respondent shall pay the Applicant's costs of suit.
19
G. FARBER
ACTING JUDGE
OF THE LABOUR COURT
DATE OF HEARING:
8TH & 9TH MAY 2001
DATE OF JUDGMENT:
14TH AUGUST 2001
ADV. M. NONKONYANA
Counsel for Respondent
Instructed by:
SITHEMBELE MGXAJI