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IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
CASE NO: 2026-018198
In the matter between:
MOTOR INDUSTRY STAFF ASSOCIATION
On behalf of 273 MEMBERS Applicant
and
MOTUS GROUP LTD Respondent
Heard: 3 February 2026
Delivered: This judgment was handed down electronically by circulation to the
Applicant’s and the Respondent’s Legal Representatives by email,
publication on the Labour Court website and release to SAFLII. The
date and time for handing - down is deemed to be 10H00 on 6
February 2026.
JUDGMENT
LALLIE J
[1] In this urgent application the applicant trade union, Motor Industry Staff
Association (MISA) seeks an order interdicting the respondent form consulting
directly with its members during a retrenchment process. I t further seeks an
order interdicting the respondent from pursuing the consultation process
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before issuing a fresh notice in terms of section 189(3) of the Labour
Relations Act1 (the LRA).
[2] The facts that are relevant for the determination of this application are that the
respondent who is the employer of the individual applicants issued a notice in
terms of section 189(3) of the LRA in October 2025. In the notice it informed
its employees including MISA that it contemplated embarking on a large scale
retrenchment that is regulated by section 189A of the LRA. A consultation
facilitated by a commissioner of the Commission for Conciliation, Mediation
and Arbitration (the CCMA) was held. It was concluded in December 2025.
[3] In December 2025 after the last facilitation meeting had been held the
respondent made further proposals to MISA which included adjustments to
the individual applicant’s benefits and terms and conditions of employment.
The proposals formed part of a draft agreement the respondent sought to
reach with MISA to avoid the retrenchment. MISA rejected the proposals and
refused to sign the draft agreement. In January 2026 the respondent made
the proposal in the form of offers to MISA members directly. It is this conduct
that the applicant seeks to interdict by bringing this application.
[4] MISA seeks to assert its right in terms of section 189A(13) of the LRA to
compel the employer to comply with a fair procedure by refraining from
consulting with its member directly and by issuing a fresh section 189(3)
notice. The applicant’s argument that the respondent is obliged to consult with
it and not directly with its members is based on section 189(1)(b)(ii) which
requires an employer contemplating retrenching one or more employees to
1 Act 66 of 1995, as amended.
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consult with any registered trade union whose members are likely to be
affected by the proposed dismissal. The applicant relied on AMCU v Royal
Bafokeng Platinum Ltd & Others
2 where its right in terms of section 189(1)(b)
is interpreted as follows:
“(iv) The procedure for dismissals based on operational requirements is
exhaustively set out in section 189 of the LRA.
(v) Our jurisprudence since the introduction of the LRA has consistently
interpreted section 189 to exclude any requirement of individual or
parallel consultation in the retrenchment process outside the confines
of the hierarchy section 189(1) itself creates.”
[5] It was argued on behalf of the respondent that the employer is not precluded
from consulting with employees directly when the trade union intentionally
obstructs the employer’s attempts to consult. In support of the argument the
respondent relied on Smith and Others v Courier Freight
3:
“[69] I am satisfied that the employer made genuine attempts to engage
with the union on the retrenchment process. However, it could not allow the
union to delay the process of restructuring indefinitely. The union overplayed
its hand and must now accept the consequences of its ill -advised decision to
unnecessarily delay the consultation process. In light of the aforesaid, I
believe there was substantial compliance with the provision of Section 189 of
the Act by the employer.”
[6] I accept the correctness of the AMCU v Royal Bafokeng Platinum (supra).
The respondent pointed out, correctly so, that it is the requirement of
individual consultation that is excluded in that judgment. No party in this
2 2020 ILJ 555 CC at para [101].
3 (2008) 29 ILJ 420 (LC) at para 69.
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matter submitted that the respondent is required to consult an individual
employee. It is also not the respondent’s case that it seeks to conduct parallel
consultation. The respondent’s case is that MISA refused to engage with it in
respect of its revised offer. MISA did not deny the refusal.
[7] It is common cause that respondent disclosed in the section 189(3) notice that
should consensus not be reached during consultation on the withdrawal or
implementation of adjustments to certain benefits and terms and conditions of
employment, the affected employees may be included in the pool of
employees contemplated for retrenchment. Those employees were in
annexure B of the notice. The applicant submitted that the individual
applicants fell in the category of annexure B employees. As the applicant took
a decision to refuse to consult further it must accept the consequences of its
decision. It may not reasonably claim to have been side-lined. The
respondent’s conduct of consulting with its members is a direct consequence
of its refusal. Section 189(1) provides no alternative consulting party in
circumstances where the trade union withdraws its participation. The refusal
therefore requires a purposive interpretation of section 189(1) which should
prevent a consulting party from unreasonably obstructing th e consultation
process. By consulting with MISA members directly , the respondent did not
conduct a paral lel consultation process because MISA’s refusal to continue
with the consultation brought the consultation to a halt. When the respondent
consulted with MISA members directly , MISA, by its refusal, had left the
consultation process. MISA therefore failed to prove, in the circumstances of
this case that the respondent is precluded from consulting directly with its
members. The Constitutional Court in AMCU v Royal Bafokeng (supra) did
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not create a right for trade unions to unreasonably obstruct the consultation
process.
[8] The applicant’s contention that it is entitled to a fresh section 189(3) notice for
the consultation process to continue after the facilitated consultation has been
completed is based, inter alia, in NUMSA v General Motors South Africa (Pty)
Ltd
4 where the following view was expressed:
“[45] Taking all of these facts into account, on balance, it is my view that the
retrenchments contemplated by GM in February 2009 were not anticipated by
the invitation to consult issued on 1 July 2008, and that the consultation
process initiated by that invitation came to an end in 2008. It was reasonabl e
for the consulting parties to assume, as NUMSA did, at least by 3 September
2008, that no compulsory retrenchments were contemplated by GM
consequent on that invitation. It follows that if GM contemplated further
dismissals, as it did in February 2009, it was obliged to issue a fresh notice in
terms of s189(3). It follows too that GM’s failure to do so has the result that
the dismissal of those employees who left GM’s employ in April 2009 was
procedurally unfair.”
[9] Based on the above judgment the applicant submitted that the Labour C ourt
has consistently found that when the consultation process comes to an end
and the employer therefore contemplates retrenchment, it must start again
with the retrenchment proceed. The respondent disagreed and relied on
National Union of Metalworkers of South Africa (NUMSA) obo Members v
Arcelormittal South Africa Ltd
5 where it was held that where there is a material
change to the landscape between the conclusion of the CCMA facilitated
consultation sessions and the issuing of the dismissal notices which may
4 (2009) 30 ILJ 1861 (LC) at para 45.
5 (2025/173974) [2025] ZALCJHB 510 (30 October 2025).
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affect the business rational for the retrenchment, the employer is not
necessarily required to issue a new section 193(3) for the further consultation.
[10] Section 189(3) of the LRA makes no provision for the issuing of further
notices after the first has been issued. The respondent pointed out that the
authorities the applicant relied on are based on facts that are distinguishable
from those of the matter before me. In NUMSA & Others v Precious Metal
Chains (Pty) Ltd
6 the reasons for the decision that the employer should issue
a fresh section 189(3) are expressed as follows:
“From the evidence of Mr Durr, it is patently clear that the respondent did not
comply with the provisions of s189. The consultations which were held in
June 1996 and which resulted in the retrenchments then, cannot be relied
upon to justify the retrenchments in January 1997. For a period of about
seven months, the individual applicants and the other staff, as well as the
union, had no reason to believe that retrenchments were imminent. When the
respondent realized that the working of short -time was not meeting its
requirements, it should have invited the union for consultations before making
a final decision in this regard. The contemplation to dismiss the individual
applicants was in January 1997 and that it when consultations should have
commenced”.
[11] In the authorities the applicant relied on the time that had lapsed between the
retrenchment and the initiation of the consultation process and the change in
the employer’s circumstances led employees to believe that retrenchment
was not imminent. That created the need for a fresh section 189(3) notice. It is
therefore not the end of the facilitated consultation that triggers the need for a
fresh section 189(3) notice. More needs to happen. There must be a material
6 1997 ILJ 1346 (LC) at 1350 H-1351A.
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change in the employer’s ability to retain the employees it anticipated
retrenching as retrenchments must be anticipated in the section 189(3) notice.
The applicant did not succeed in establishing facts which justified the issuing
of a fresh section 189(3) notice.
[12] The applicant sought an interdict. It therefore had to prove a right, reasonable
apprehension of harm and the absence of an alternative relief. The applicant
did not prove the right which needs to be protected by the interdict and absent
that right the interdict may to be granted.
[13] The parties have a continuing relationship and granting a costs order will not
be appropriate.
[14] In the premises, the following order is made:
1. The forms provided and the time periods stipulated in the Rules regulating the
conduct of the proceedings of the Labour Court are dispensed with and this
matter is heard as one of urgency in accordance with the provisions of Rule
38.
2. The application is dismissed.
3. There is no order as to costs.
NZM Lallie
Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Dr G. Ebersohn of Ebersohns Inc
For the Respondent: Advocate A. Redding SC with Advocate R. Itzkin
Instructed by Thomson Wilks Attorneys