THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JA 34/25
In the matter between:
ARCELORMITTAL SOUTH AFRICA LIMITED Appellant
and
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (NUMSA) First Respondent
SOLIDARITY Second Respondent
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (AMCU) Third Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Fourth Respondent
JOYCE NKOPANE N.O. Fifth Respondent
NOMAXOTSHO MEMANI N.O. Sixth Respondent
KGAKGAMATSO MOTEBE N.O. Seventh Respondent
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Heard: 17 February 2026
Delivered: 16 March 2026
Coram: Nkutha-Nkontwana JA, Davis AJA et Musi AJA
JUDGMENT
DAVIS, AJA
Introduction
[1] This is an appeal against a judgment of the court a quo of 8 October 2024 in
which Erasmus AJ dismissed an application for the review and setting aside of
the designation ruling made by the Essential Services Committee (ESC) on 16
November 2022 in terms of which the ESC determined that the services of blast
furnaces and coke batteries form part of the manufacture, production and
distribution of steel and cannot be described as essential services.
[2] This appeal therefore requires of this C ourt to provide an interpretation of
“essential services” as defined in s ection 213 of the Labour Relations Act
1 (the
LRA).
Factual Matrix
[3] The appellant is a sole steel producer in South Africa. It operates a steel plant in
Van der Bijl Park and New castle. T o produce steel at the plant , a substance
called coke, which resembles coal , is produced in a coke plant . Metallurgical
grade coke is produced in coke ovens from heating coal.
1 Act 66 of 1995, as amended.
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[4] The coke ovens also produce gas used in the rest of the plant. These ovens are
operated by massive batteries which can b e idled but not completely turned off
as a machine would be switched off in the usual course. When the coke batteries
are idled, there are risk of cracks and gas escaping. Accordingly , the idling must
take place in a controlled manner to avoid an explosion that may occur due to
gas hazards.
[5] Coke is manufactured at the appellant’s plant. It is then transferred to a blast
furnace at the plant. At t he blast furnace a hot m olten liquid metal i s
manufactured through a complex process which converts iron into liquid iron
which is then carried by using torpedoes to the steel plant where steel is
eventually manufactured. Both the blast furnace and coke battery areas are gas
– hazardous and heat – hazardous. The temperature that the blast furnace
reaches 148 degree celsius and 1200 degree celsius at the coke ovens.
[6] The uncontested evidence is the blast furnaces carr y 25% carbon monoxide and
that 2% would be lethal to human beings.
[7] The appellant contends that there is a risk of an explosion of a blast furnace
which is reasonably foreseeable, if there is a lack of adequate time to saf ely blow
down the furnace which must be done in several phases. It contends that the hot
idling process by which the coke ovens remain heated is necessary when it shuts
down operations. But there must be enough time to undertake this operation, so
that there is no bodily risk to the lives of personnel working in the area.
[8] The context in which this matter has come before this C ourt is sourced in the
argument of the appellant that when it receives a strike notice it has , in terms of
the LRA, but 48 hours to safely blow down of slow operations the blast furnaces
and hot idle the coke batteries at the coke plant. By contrast
2, it contends that t o
fully shut down two blast furnaces safely , six days are required with a full staff
compliment.
compliment.
2 See: Section 64 (1)(b) of the LRA which provides that at least 48 hour’s notice of the commencement of
a lawful strike is required.
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[9] For these reasons the appellant contends that it s staff will be placed in undue
danger during the blow down of the furnace where a full staff compliment and
additional contract staff is required for the six day period to deal with the blow
down of two blast furnaces and the coke batteries and during hot idling. This
would be impossible in the case of a strike in that the 48 hour period is simply not
sufficient to undertake these tasks with safety.
[10] There is no collective agreement that would extend the 48 hour period to strike to
require six days for the first phase and there is no collective agreement
prohibiting core workers who are required to remain behind during a phase of the
shutting from striking. Because of these considerations, appellant contends that
the only way to protect the lives of its employees is to seek a declaration from the
ESC declaring these operations , being the slow down and hot idling phases , as
essential services while providing for as narrowly tailored an order as possible to
ensure that the right to strike is not unduly restricted.
[11] In a finding of the ESC confirmed by the court a quo section 213 of the LRA ,
essential services in terms of s ection 213 of the LRA was interpreted to protect
the broader societal interest and not isolated individuals at specific workplaces.
Accordingly, the court a quo upheld the ruling of the ESC that the operation of
blast furnaces and coke batteries does not constitute an essential service as
provided for in section 213 of the LRA.
The appellants case on appeal
[12] The appellant contends that the word “essential” as contained in s ection 213 of
the LRA is not defined. In its view, what renders a service essential in the
context of the phrases employed in the LRA is to be found in its own definition
providing for the following requirements being:
‘“essential service” means –
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(a) a service the interruption of which endangers the life, personal safety or
health of the whole or any part of the population …’
(Own emphasis)
[13] Appellant contends further that the word “interruption” means the cessation of the
rendering of the service in question, to such an extent that the cessation of the
rendering of the service endangers the life and personal safety or health of the
whole or any part of the population. By reference to the ordinary dictionary
meaning of “ endanger”, the appellant contends the word means to place
someone or something at risk or in danger.
[14] Of critical importance is the further submission that the phrase “any part of the
population” must be interpreted broadly and purpos ively to include employees
whose lives are directly endangered by the interruption of high risk industrial
services. Appellant further contends that the expert evidence provided to the
ESC and thus to the court a quo demonstrated that an interruption of high risk
industrial services in this context would create a real and immediate risk to the
lives of employees operating these units.
[15] In summary, the appellant’s case is that it is reasonably likely that someone
forming part of the population, specifically its workers, may die or suffer serious
bodily harm if the services are interrupted without proper shutdown procedures .
This, in its view, fulfils the threshold required for a designation of an essential
service. It follows that if the appellant is correct in its advocated meaning of
essential service, this would cover procedures necessary to ensure the safe
shutdown of the critical areas of its plant as described above.
[16] In dealing with the constitutionally entrenched right to strike as provided for in
section 23 of the Constitution of South Africa, 1996 (the Constitution) , the
appellant’s submission is that the right to strike although fundamental , is not
absolute and must be balanced against the right to life which is non- derogable in
absolute and must be balanced against the right to life which is non- derogable in
terms of the Constitution. The appellant therefore submits that the ESC and by
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extension the court a quo failed to conduct the necessary balancing exercise.
Instead, it adopted a rigid interpretive stance that excludes those most at risk ,
such as in the present case.
Evaluation
[17] The respondents concede that an act of strik ing, as enshrined in s ection 23 of
the Constitution, and as provided for in section 64 of the LRA can be limited.
However, that limitation has to reasonably and justifiably be limited by another
law of general application pursuant to section 36 of the Constitution.
[18] This argument therefore drives the analysis to the wording of section 65 (1)(d)(i)
of the LRA which provides that “ no person may take part in a strike ... if that
person is engaged in an essential service”.
[19] The third respondent makes much of the evidence that blast furnaces can be
blown down with a salamander tap within 48 hours and therefore the evidence is
itself, against the appellants case.
[20] But this case can be decided without detailed recourse to the technical evidence
regarding the shutting down of the plant . In Police and Prison Civil Rights Union
v South African Police Services and others3, the Constitutional Court said:
‘In order to ascertain the meaning of essential service, regard must be had to the
purpose of the legislation ... An important purpose of the LRA is to give effect to
the right to strike entrenched in s 23 (2)(c) of the Constitution... For this reason a
restrictive interpretation of essential service must, if possible, be adopted so as to
avoid impermissibly limiting the right to strike. Were legislation to define essential
service too broadly this would permissibly limit the right to strike.’
[21] The task of this Court therefore is to give content to the concept of essential
service without unjustifiably trenching upon the scope of the right to strike as
entrenched in section 23 of the Constitution.
3 2011 (6) SA 1 (CC) at para 30.
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[22] If the interpretation of essential service must be crafted to ensure no unjustifiable
limitation of the right to strike , then in particular the phrase “ any part of the
population” cannot on its own without more encompass a set of workers who are
engaged in the service. Part of the population clearly means a segment of the
broader South African population who would be affected were the essential
service not be delivered. The harm which is the focus of this dispute is essentially
occupational which affects workers on site but cannot, without significant
expansion, be interpreted to encompass a significant portion of the South African
population or even a segment thereof.
[23] As the first respondents note, the International Labour Organisation (ILO) has
cautioned that the principle whereby the right to strike may be limited or even be
prohibited in essential services would lose all meaning if national legislation
defined these services in too broad a manner.
[24] Significantly, the ILO sets out the following which it considers to be essential
services, the hospital sector, the electricity services, water supply services, the
telephone service, the police and the armed forces, the firefighting services,
public or private prison services, the provision of food to pupils of school age and
the cleaning of schools and air traffic control.
4 This list indicates the very
purpose of “essential services” affecting, at the least part of the population, are
services which are essentially required by the general population as part thereof.
[25] Most certainly, this Court is entitled to apply the approach adopted by the ILO, for
in terms of s ection 39 (1) of the Constitution, this Court is required to engage in
the interpretation of the Constitution which promotes the values of an open
democratic society based on human dignity, equality and freedom , while
considering international law and it may consider foreign law.
considering international law and it may consider foreign law.
4 International Labour Organisation, Freedom of Association: Digest Decisions of Principles of the
Freedom of Association Committee of the Governing Body of the ILO (5th ed 206) at paras 583 and 585.
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[26] The jurisprudence of the ILO provides clear guidance for that which, in my view,
is manifestly congruent with the wording that has been used and hence the
intention of section 213 of the LRA.
[27] As noted, the list of essential services provided by the ILO gives a clear
indication of that which was attended by the concept of essential services which
would be to the benefit of a whole or part of the population. By contrast, an
occupational hazard does not extend as far as is required to justify appellant’s
case. The submission of the first respondent that the phrase “ the whole or any
part of the population ” as employed in s ection 213 of the LRA connotes the
general public or community or a part thereof. In other words , congruent with the
approach of the ILO, essential services are provided to the population at large or
to a segment thereof. That is why hospital services, firefighting or police are
considered to be essential services.
[28] It must follow that the risks which flow from the evidence provided by the
appellant were correctly classified as occupational hazards as opposed to that
which affects the whole or part of the population and hence activities / conduct
that falls within the scope of essential services.
[29] Appellant’s case requires of this Court to extend the concept of essential services
far further than a purpos ive interpretation permits . It would strike an improper
balance between the right to strike and section 213 of the LRA.
[30] In the premise the following order is made:
Order
1. The appeal is dismissed, with costs.
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______________________
D. Davis
Acting Judge of the Labour Appeal Court of South Africa
Nkutha-Nkontwana JA and Musi AJA concur.
APPEARANCES:
For the Applicant : Cliffe Dekker Hoffmeyr Inc
For the Respondent : Adv W Strobl
Instructed by: Serena Chetty Inc Attorneys