THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2545/22
In the matter between:
NATIONAL UNION OF METALWORKERS OF SOUTH
AFRICA o.b.o. MEMBERS Applicant
and
ESSENTIAL SERVICES COMMITTEE First Respondent
LUVUYO BONO N.O. Second Respondent
MANGANESE METAL COMPANY (PTY) LTD Third Respondent
Heard: 3 February 2026
Delivered: 9 February 2026
JUDGMENT
MAKHURA, J
Introduction
[1] The applicant brought these review proceedings against the ruling of the
Essential Services Committee (ESC) issued on 30 September 2022. The
ruling under review was issued pursuant to the applicant’s request for the
(1) Reportable: NO
(2) Of interest to other Judges: NO
(3) Revised
____________ ______________
Signature Date
2
ESC to c ancel and/or var y the designation ruling issued on 30 December
2021, which designated certain services of the third respondent as essential.
The third respondent’s application to archive the file
[2] On 20 March 2025, the third respondent applied for an order that the
application is archived due to the applicant’s “failure to take any steps for a
period of more than 6 months after the date of the last process filed in this
matter and/or for its failure to comply timeously with the directive issued by
this Honourable Court on 24 August 2023 to file its Heads of Argument within
15 days of receipt of the directive”. Reliance was placed on clause 16.1 of the
now repealed Practice Manual
1, alternatively the rule 69(2)(a) or (c) of the
rules of this Court2.
[3] Item 16.1 of the Practice Manual provided that:
‘16.1 In spite of any other provision in this manual, the Registrar will archive
a file in the following circumstances:
• in the case of an application in terms of Rule 7 or Rule 7A,
when a period of six months has elapsed without any steps
taken by the applicant from the date of filing the application, or
the date of the last process filed;
• …
• when a party fails to comply with a direction issued by a judge
within the stipulated time limit.’
[4] Rule 69(2) of the current rules is the same as item 16.1 of the Practical
Manual. The review application was launched on 21 November 2022. The
provisions of the Practice Manual applied to the application until 16 July 2024.
[5] The third respondent argued that the applicant’s heads of argument were filed
after six months of no process.
1 Practice Manual of the Labour Court of South Africa, 2 April 2013.
2 Rules Regulating the Conduct of Proceedings of the Labour Court, GN4775a in GG 50608, 3 May
2024.
3
[6] On 24 August 2023, the parties were directed by the registrar to file heads of
argument. The applicant served its heads of arguments on the third
respondent on 14 September 2023, which was within the 15- day period as
directed. However, it only filed them in January 2025.
[7] The third respondent contends that, for this non- compliance, the review
application has been archived. It argues that the review application has been
archived because the applicant’s heads of argument were filed after six
months of no process as contemplated in the first bullet point of item 16.1 of
the Practice Manual and that the applicant had failed to comply with the
direction issued by a judge, per the third bullet point of the item 16.1 and
paragraph 3 of the directive to the parties to file heads of arguments dated 24
August 2023.
[8] I am unable to agree with the third respondent that a failure to timeously file
heads of arguments would lead to archiving of the application as
contemplated in item 16.1 of the Practice Manual.
[9] First, although paragraph 3 of the directive to file heads of arguments states
that the Judge President directed the parties to file heads within a prescribed
period, this is a standard administrative document issued to the parties by the
registrar to file heads. In addition, even if it is accepted that this direct ive was
issued by a “judge” as contemplated in item 16.1, the directive further
informed the parties that non-compliance “may lead to the … matter not being
considered for hearing”.
[10] Secondly, the applicant had indexed and paginated the pleadings and filed a
notice in terms of Rule 22B
3, in terms of which it also requested the r egistrar
to enrol the matter for hearing. This process was also aligned with clause
11.2.7 of the Practice Manual, which required the applicant to ensure all
necessary papers (excluding heads of arguments) were filed within 12 months
of applying for review and to notify the registrar that the matter was ready to
of applying for review and to notify the registrar that the matter was ready to
3 See the now repealed Rules for the conduct of proceedings in the Labour Court, GG 17495 of 14
October 1996.
4
be allocated a hearing date. Failure to do so would result in the review
application being archived.
[11] Thirdly, item 11.6.8 of the Practice Manual provides that failure to file heads of
argument would not constitute a basis for the postponement of the hearing,
and the presiding judge had the discretion to determine how to proceed with
the matter. Item 11.6.5 also left it to the presiding judge to consider awarding
a punitive costs order against a litigant who failed, neglected or refused to file
heads timeously.
[12] The primary focus of the Practice Manual was for pleadings to be filed within a
specified period or for the file not to remain dormant for a period of six months
before the pleadings were closed and the registrar is informed of such. Heads
of arguments are not pleadings.
[13] This application by the third respondent was a waste of the court ’s time and
resources. It was unnecessary. At best, the third respondent could have
argued that the court should disregard the applicant’s heads of argument or
that the court should award costs against the applicant for its non- compliance.
Accordingly, the application for archiving is dismissed.
The review application
Material facts
[14] On 24 March 2021, the third respondent filed a request for an essential
services investigation in terms of which it sought to be designated as an
essential service in terms of section 71 of the Labour Relations Act
4 (LRA),
alternatively be designated as a minimum service. Thre e interested parties
were cited in this request, viz, the applicant, Solidarity and the Metal and
Electrical Workers Union of South Africa (MEWUSA).
[15] MEWUSA opposed the request or referral and filed its submissions on 17 May
2021. The applicant, on the other hand, sought an extension to file its
opposing papers. The ESC granted the extension from 17 May 2021 to 28
4 Act 66 of 1995, as amended.
5
May 2021. On 26 May 2021, the applicant requested an inspection in loco to
be conducted on 31 May 2021 and indicated that it would only file its opposing
papers on 7 June 2021. The third respondent was not amenable to an
inspection in loco to be conducted on 31 May 2021, but proposed 1 June
2021. The applicant did not attend the inspection in loco and instead
proposed alternative dates of 22, 23 or 24 June 2021. The applicant was not
amenable to the proposal and proposed a final date of 10 June 2021. The
applicant informed the third respondent that it was not available on 10 June
2021. The applicant requested a further indulgence to file its opposing papers.
[16] On 1 July 2021, the ESC refused the applicant’s request for further extension.
It also ruled that the inspection in loco would be conducted as part of the
investigation if necessary. Accordingly, the ESC found that the third
respondent’s request for an essential service investigation had merit and
should be investigated.
[17] On 6 August 2021, a section 71 notice of investigation was gazetted
containing dates for public hearings and t he public was informed of their right
to make oral and written representations. Public hearings were held over 7
days between 31 August and 12 October 2021. The applicant attended some
of the meetings but made no representations nor requested an inspection in
loco.
[18] On 30 December 2021, the ESC issued a report in terms of which it
designated the following services as essential:
‘a. The refining of manganese ore through a continuous electrowinning
process; and
b. The [t]reatment and management of contaminated water (leachate
and run off) which is specifically related to the refining of manganese
ore through a continuous electrowinning process at the affluent
treatment plant.’
[19] The parties were then directed to negotiate and conclude a minimum service
agreement by no later than 30 March 2022. No minimum service agreement
6
was reached between the third respondent on the one hand and the applicant
and MEWUSA on the other.
[20] On 5 May 2022, the applicant applied in terms of section 71(9) 5 of the LRA for
variation and/or cancellation of the essential services designation, and
variation and/or cancellation of the “ratified … minimum service agreement if
any and/or … minimum service determination if any” . It is common cause that
as of 5 May 2022, the applicant had not entered into an agreement with the
third respondent and that the ESC had not determined the minimum services
to be maintained during the strike or lockout.
[21] On 25 July 2022, the ESC, in terms of section 72(2) 6 of the LRA and
considering the parties’ failure to conclude a minimum service agreement,
issued a determination on the minimum services to be maintained in the event
of a strike or lockout.
[22] In it s supporting affidavit for the variation and/or cancellation of the
designation and/or minimum service agreement or minimum service
determination, the applicant contended that it sought the above determination
on the basis that the third respondent does not provide any essential service
at all. The crux of the applicant’s case is that the ESC made the designation
without considering its oral representations, which were made by its trade
union official. However, the applicant does not state the date or dates on
which its official made the representations which were allegedly ignored by
the ESC. The applicant then submitted that:
‘…the ESC did not have the benefit of the Applicant’s representations
contained hereunder when it made its determination in respect of the
designation of 30 December 2021…
Only the representations of the [third respondent] were before the ESC.
5 Section 71(9) provides: “A panel appointed by the essential services committee may vary or cancel
the designation of the whole or a part of a service as an essential service or any determination of a
minimum service or ratification of a minimum services agreement, by following the provisions set out
in subsections (1) to (8), read with the changes required by the context”.
6 Section 72 (2) provides: “If the parties fail to conclude a collective agreement providing for the
maintenance of minimum services or if a collective agreement is not ratified, a panel appointed by the
essential services committee may determine the minimum services that are required to be maintained
in an essential service”.
7
The representations that were made by the [third respondent]… were
misleading.
If the ESC had been privy to the truth about the negligible degree of danger
posed (to life and environment) by the interruption… of the refining process
and true number of employees who had participated in previous strikes with
no danger to life or environment, it would not have issued an essential
services designation.’
[23] The applicant then proceeded to set what in its view are true facts. No
grounds were advanced for the variation or cancellation of the minimum
service determination, as that determination was issued after the application.
The applicant did not seek to supplement its papers to address the minimum
service determination. The application was opposed by the third respondent.
[24] On 30 September 2022, the ESC issued a ruling on the applicant’s request for
variation and/or cancellation of the designation. The ESC ruled that the
applicant’s request did not meet the required standard of reasonableness for
the ESC to investigate or reinvestigate, that the applicant had an opportunity
to oppose the third respondent’s application, but elected not to exercise its
right. In addition, the ESC refused to rescind its designation on the basis that
the applicant was notified of the public hearings and despite its attendance at
these hearings, failed to make any representations.
[25] It is this ruling that the applicant now seeks to review and set aside. To clarify,
the applicant does not challenge the designation ruling issued on 30
December 2021, nor does it challenge the minimum service determination
issued on 25 July 2022. It only seeks to review the ruling in terms of which the
ESC refused to conduct the investigation.
[26] In opposition of this application, the third respondent raised four points in
limine, which I address first.
The third respondent’s points in limine
[27] The third respondent argued that the applicant filed an incomplete record and
[27] The third respondent argued that the applicant filed an incomplete record and
that the missing portion of the record is material to the determination of the
8
review application. The record referred to by the third respondent relates to
the proceedings leading to the designation ruling of 30 December 2021. The
applicant filed a notice in terms of rule 7A(8) and has indicated that it was
satisfied with the record. The applicant made the election to proceed with the
review on the record it had filed. It therefore complied with the rules of the
Court. The issue, of course, is whether the grounds of review are supported
by the material or record filed by the applicant. Where the applicant failed to
file the portion of the record which is material to one or more grounds raised in
its review application, such ground/s would be dismissed because of a lack of
substantiating evidence on the record before the Court. It is therefore
inappropriate to dismiss the review application solely because part of the
record is missing or has not been filed, particularly where the applicant argues
that the record before the Court is sufficient.
[28] The second point is that the referral or request for variation or cancellation
dated 5 May 2022 is moot or premature. This point was based on section
72(4)(b) of the LRA. Section 72(4) provides that:
‘(4) A minimum service determination –
(a) is valid until varied or revoked by the essential services
committee; and
(b) may not be varied or revoked for a period of 12 months after it
has been made.’
[29] The point is not relevant or applicable in the present application because the
review application before this Court is, as I already stated, not against the
minimum service determination. Further, t he applicant does not seek to
review and set aside the designation made on 30 December 2021, which
would have raised the question about the validity of the minimum service
determination. The review application is not moot because the ESC could
have decided to reinvestigate the matter if it was satisfied that the request
was reasonable and depending on the outcome of that reinvestigation, vary
was reasonable and depending on the outcome of that reinvestigation, vary
the minimum service determination. This point takes the matter no further and
falls to be dismissed.
9
[30] The third point is that the review application is an abuse of the court process
because for this review application to have any practical effect, the minimum
service determination would have to be varied or revoked. How this could be
raised as a point in limine is beyond comprehension. For the Court to find that
the application constitutes an abuse of its process, it must first determine the
merits of the application. This so-called point in limine is dismissed.
[31] The fourth point in limine, raised as an alternative point to the mootness point
above, is that the applicant’s request to the ESC was premature because
section 72(4)(b) of the LRA provides that “a minimum service determination
may not be varied or revoked for a period of twelve (12) months from the date
after it has been made” . The applicant did not request the variation or
cancellation of the minimum service determination. For this reason alone, the
point in limine falls to be dismissed.
Merits of the review application
[32] The applicant advanced two grounds of review. First, it contends that the
dispute that it referred to the ESC remained unresolved, second, that the ESC
ignored relevant factors in its decision to refuse to “re-open” the investigation.
[33] The review test applicable to review of the ESC rulings or determinations was
discussed by this Court, per Tlhohlalemaje J, in National Union of
Mineworkers v Essential Services Committee and O thers
7 in a matter where
the Court was asked to review a minimum service determination issued in
terms of section 72(2) of the LRA. The Court considered the debate whether
the determinations or rulings are reviewable under the Promotion of
Administrative Justice Act
8 (PAJA) and/or section 145 and 158(1)(g) of the
LRA. The Court, having considered various judgments 9, found that the
applicable test is that of reasonableness as set out in Sidumo and Another v
Rustenburg Platinum Mines Ltd and others10 (Sidumo). It concluded that:
7 [2019] ZALCJHB 82.
7 [2019] ZALCJHB 82.
8 Act 3 of 2000.
9 Fn 4, at paras 37 – 50.
10 [2007] ZACC 22; (2007) 28 ILJ 2405 (CC).
10
‘… it should be accepted as argued on behalf of Eskom, that the
administrative justice provision of the Constitution suffuses the grounds of
review under section 145 and 158(1)(g) of the LRA, which in turn are suffused
by the constitutional standard of reasonableness. The parties in this case
having failed to agree on which positions within Eskom’s Human Resources
Department ought to fall under minimum services, the dispute then had to be
subjected to compulsory arbitration, which resulted in the impugned award.
The fact that the findings of the ESC are framed as a ‘Determination’ does not
give it a different colour or texture for the purposes of a review under PAJA.
The fact that the provisions of section 158(3) of the LRA omitted to refer to
such determinations as arbitration awards does not make them less of
awards. They remain awards which would ordinarily be subject to the review
test under the confines of section 145 and 158 of the LRA.’
[34] Accordingly, the Sidumo test applies, unless the ESC issued a jurisdictional
ruling. Now, turning to the first ground of review. The applicant contends that
the ESC failed to deal with the following issues, namely, whether the
electrowinning process is continuous, whether the third respondent’s
misrepresentations were misleading insofar as they related to the dangers
emanating from an interruption of the refining process and the number of
employees who participated in the strike, the previous overflows whic h
indicated the lack of danger and the previous strike actions where all
employees, except management, participated and there was no danger to life.
[35] The first ground is interwoven with the second because the applicant
contends under the second ground that the ESC ignored relevant factors.
These factors allegedly ignored by the ESC are that , because the ESC made
its decision based on the third respondent’s representations, it would not have
known if the representations were misleading or not. This, of course,
known if the representations were misleading or not. This, of course,
contradicts the applicant’s pleaded case elsewhere that the union official
made oral representations. The applicant again contends that the ESC
ignored the alleged outsourcing aspects of the electrowinning process and the
impact of the previous strikes.
11
[36] Insofar as the applicant contends that the ESC ignored its oral
representations made by its official, this allegation is not supported by any
facts. The applicant failed to plead the date when the representations were
made. It also failed to provide the record in the form of a transcript of the
hearing when such representations were made. On the record before this
Court, the applicant failed to make representations during the public hearings.
The applicant’s submission, therefore falls to be rejected as unsubstantiated.
[37] The applicant’s request for variation and/or cancellation before the ESC must
be seen for what it truly was. Its request was not for variation as it had not
pleaded how the designation should be varied. It was an attempt to nullify the
due process of the ESC, which was carried out in accordance with section
71(1) -(8) of the LRA. The applicant was aware of the public hearing dates,
which were duly gazetted and it had attended most of these hearings. It
elected, for its own reasons, to make no input in that duly constituted process.
When the ESC issued a designation, it now cries foul and seeks to rescind or
cancel the designation and re- open or restart the process so that it can, this
time around, make its representations.
[38] The ESC correctly rejected the request as unreasonable or failing to meet the
standard of reasonableness to investigate or re- investigate. It further correctly
recorded that the applicant had ample opportunity to participate in the
process, which commenced in August 2021 until November 2021, before it
issued its designation on 30 December 2021. In other words, the applicant
failed to show good cause for its designation to be rescinded, and for the third
respondent’s request to be heard de novo. The review application rehashed
some of the submissions before the ESC and sought to provide the
representations that should have been made to the ESC during the period
August 2021 to November 2021.
August 2021 to November 2021.
[39] In the applicant’s request before the ESC and the current review application,
the applicant made no attempt whatsoever to provide reasons why it elected
not to or failed to make representations during the public hearings. The
applicant did not provide any exceptional circumstances or new facts that
came to light after the designation which were not within its knowledge or
12
contemplation before and during the public hearings. The request to vary or
cancel the designation in terms of section 71(9) should not be based on the
party’s election not to participate in the earlier investigation process, which
this application is about. I agree with the third respondent that the applicant’s
request and the current application are an abuse of the variation and/or
cancellation and the review processes. For the above reasons, the review
application falls to be dismissed.
Costs
[40] The third respondent sought costs against the applicant on a punitive scale.
Whilst I agree that the review application is an abuse of the court process,
there is no justification for a costs order in this case because t he third
respondent had also raised unnecessary technical points which have all been
dismissed. It also brought a misguided application to archive the review
application. Accordingly, there should be no costs order in the two
applications before this Court.
[41] In the result, the following order is made:
Order
1. The third respondent’s application to archive the file is dismissed.
2. The review application is dismissed.
3. There is no order as to costs.
_______________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Mr S Mogare (NUMSA)
For the Third Respondent: Ms JD Withaar
Instructed by: Gottschalk Attorneys