THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: 2025-236301
In the matter between:
NATIONAL UNION OF BEVERAGE WINE Applicant
SPIRITS AND ALLIED WORKERS (NUFBWSAWA) obo MEMBERS
and
COCA – COLA BEVERAGES OF SOUTH AFRICA LTD First Respondent
FOOD AND ALLIED WORKERS OF SOUTH AFRICA Second Respondent
Heard: 18 December 2025
Delivered: 19 March 2026 (This judgment was handed down electronically by
emailing a copy to the parties. 19 March 2026 is deemed to be the date of
delivery of this judgment).
JUDGMENT
KROON AJ
Introduction
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This is an opposed urgent application brought by the Applicant (the Union)
and instituted in terms of Section 189A(13)(c) of the Labour Relations Act No.
66 of 1995 (the LRA) . The Union seeks an order, inter alia , compelling the
First Respondent (the Company ), which opposed the application, to reinstate
19 of its members (the Employees) and a mandamus requiring it to comply
with section 189(3) of the LRA. The papers were voluminous, spanning some
1000 pages.
[2] The application's feature is that it constitutes a transparent attempt to raise
issues of substantive fairness under the guise of procedural fairness . By way
of amplification, t he Union's application was not primarily concerned with the
fairness of the consultation process . Rather, it was concerned with the
fairness of the outcome or the culmination of the consultation process, i.e., the
dismissal of its members.
[3] The Union makes two broad assertions regarding substantive fairness. It
alleges:
[3.1] Firstly, the posts of the Employees were not redundant as alleged by
the Company.1
[3.2] Secondly, in selecting the Employees for retrenchment , the Company
unfairly refused to implement LIFO and, in particular, unfairly refused to
make use of the mechanism of “bumping”. In this context, the Union
contended, inter alia, that the Employees are either trained to occupy
other posts or could readily be trained to do so.
[4] As to the latter point, a central element of the Union's case is the allegation
that the Company did not adopt fair selection criteria. The Union sets out its
case as follows:
“...7.1 LIFO’ and bumping would have been a fair procedure. But CCBSA did
not adopt that procedure in the case of these Applicants. Had CCSBA (sic)
adopted that procedure the Applicants would not have been retrenched.”
1 See paragraphs 8.23 and 8.24 of the founding affidavit. See also paragraphs 9.1 to 9.31 of the
founding affidavit.
3
[5] The Union goes on to state further as follows:
“7.2.1 I will demonstrate, below, as I have already alluded to the fact that all
the Applicants herein had the skills and the experience, which was
required, and acceptable, as necessary to execute the roles to which
the Applicants herein could have been transferred to avoid
retrenchment had a fair procedure been adopted by CCBSA.
7.3 As I have said already, if the need for training had arisen then such
training would have been only minimal and it would not have caused
disruption of CCBSA’s producti vity. I am informed by the Applicants
who have inside knowledge and experience – from observing, or from
being trained themselves – that training in order to acquire skills in
CCBSA is an inhouse on-the-job process which takes place almost daily
without disrupting production.”
[6] Regarding the issue of redundancy, the following paragraphs are contained in
the founding affidavit:
“7.8 The reasons given by CCBSA in its s189(3) notice, were all calculated
to suggest, and did suggest, that the termination of the employment
contracts, was based on CCBSA's operational requirements, in the
sense that the roles had become redundant and some other similar
reasons which suggested that retrenchment was necessary. But even a
modicum of scrutiny suggests that, as a matter of fact, other than at the
Bloemfontein plant, the roles previously occupied by the Applicants
herein in acting capacities, and the roles for which the Applicants had
been trained, and the roles for which employees at the grade of the
Applicants for which many other employees had been trained, with no
disruption of productivity, were not redundant, nor was there any
reason to retrench the Applicants.
7.9 I make this submission in order to lay the foundation for the contention
that the true factual matrix which is shown by the reality contradicts
CCBSA's grounds for alleging that the reason for the retrenchments is
CCBSA's grounds for alleging that the reason for the retrenchments is
the redundancy of the roles etc as stated in its s189(3) notice. The
Applicant's simple contention is that the application of a fair procedure
4
would have shown that it was not necessary to retrench any of the
Applicants.
...
7.17 The basis for the dismissal as stated by CCBSA is a deliberate
misrepresentation, and therefore fraud. It follows further, in the
circumstances, that a procedure whether seemingly fair, if the
underlying ground is false, cannot be said to be fair. This is not to
suggest that there is any semblance of fairness in CCBSA’s procedure,
because the procedure was just unfair.
7.18 It would be idle to talk of a fair procedure where the reason for the
dismissal, although made by the CCBSA to appear like redundancy,
and also to appear like other reasons acceptable to justify retrenchment,
is, in fact, not redundancy, or any of these legally acceptable reasons
but an act, which I am informed, in the circumstances is in fraudem
legis”.
[7] Without wishing to belabour the point, t he above-described issues, as raised
by the Union, are self -evidently quintessentially and intrinsically issues which
bear on the substantive fairness of the dismissal of the Employees. It is thus
unsurprising that, when the Union resorts, in its founding affidavit, to reliance
on jurisprudence, it refers the Court to case law which may be relevant when
and if a C ourt is tasked with adjudicating on the substantive fairness of the
dismissals.2
[8] It is neither necessary nor proper for th is Court to express a view on any
complaints pursued by the Union that relate to substantive fairness of the
dismissals for the obvious reason that these are complaints which may come
before another Court should unfair dismissal disputes be pursued. This Court
would not want to risk pre-judging the outcome of any such litigation.
2 Fischer Tube Technik SA v Bayene & Anor [2024] 9 BLLR 917 (LAC) (As referred to by the union in
its papers)
5
Factual matrix
[9] The Company embarked upon a retrenchment exercise as a result of the
closure of the Bloemfontein manufacturing site (which affected one of the
Employees), as well as the outsourcing of the cleaning services , which is not
part of the core business of the Company , resulting in the posts of the
remainder of the Employees being made redundant.
[10] The process commenced with a Section 189(3) notice dated 2 September
2025. There was a virtual meeting on 12 September 2025 before the
commencement of the facilitated process. The conventional issues that
pertain to any retrenchment exercise were discussed, such as the operational
rationale, the proposed restructuring, the identification of persons affected by
the proposal, and the proposed alternatives to retrenchment. The main issue
at this meeting revolved around a proposed voluntary severance package.
The Company agreed to extend the time for the Employees to accept the
VSP.
[11] There were four facilitated consultation meetings. The first facilitated meeting
was held on 19 September 2025. The Company made a presentation. The
Union requested to be placed in possession of the organograms for the
Bloemfontein manufacturing site and other manufacturing sites. The Company
subsequently furnished the requisite organogram (see below).
[12] On 2 October 2025 , the second facilitated meeting took place. At that
meeting, there was a further presentation. The Union proposed bumping for
the first time . As FAWU did not align itself with this proposal, a decision was
made to meet separately with the Union to ventilate this issue.
[13] The meeting with the Union took place on 7 October 2025. A follow-up
meeting was held on 10 October 2025. I quote from the answering affidavit:
“16. This meeting with the union took place on 7 October 2025. The union
presented its proposal of bumping. They had prepared a list of
employees who they contended should be bumped in favour of their
employees who they contended should be bumped in favour of their
members. Significantly none of the Employees who they proposed
6
should be bumped were members of the union. The union also provided
us with a list of members who were potentially impacted, who according
to the union, were not cleaners as they had been acting in other roles.
The union argued that these employees should be removed from the list
of impacted employees. Although we considered the requested
organograms to be irrelevant, we nevertheless shared with them the
requested information at the meeting by way of a presentation
(annexures 005 to the founding affidavit). The information was also
emailed to the union on 12 October 2025.
17. On 10 October 2025, we had a follow up meeting with the union. We
gave a detailed response to the union on all the proposals that they had
made at the 7 October 2025 meeting. A copy of the slide presentation
that was made is attached hereto as annexure ‘MJP6’. We explained to
them why bumping made no operational sense to CCBSA and that we
did not agree with their proposal. We told them that we had identified 18
employees from the list which they had provided to us who were
currently acting in roles other than Cleaner/General Worker and that
these employees had been removed from the list of impacted
employees (these employees would continue in the roles that they were
acting in). We gave them a documents which addressed this issue, a
copy of which is attached hereto as annexure ‘MJP7’”.
[14] The third facilitated meeting took place on 13 October 2025. The Company
provided feedback on the non- facilitated meetings that had taken place. The
main issue raised by the Union at this meeting was its unhappiness that the
Company had not accepted its bumping proposal. According to the
Company’s answering affidavit , which I must accept ,3 the facilitating
Commissioner made it clear to the Union that the Company could not be
compelled to agree to the proposal, as its only obligation was to consult on
the proposal (not to negotiate over it), and this had been done.
the proposal (not to negotiate over it), and this had been done.
[15] Thereafter, on 20 October 2025, the Company received an email from the
Union complaining that the organogram information initially transmitted to it in
3 Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3)
SA 623; 1984 (3) SA 620
7
the context of discussions concerning bumping lacks detail. M ore detail was
requested. I quote from the letter as follows:
“Re: ORGANOGRAM DISCLOSURE
The union have requested that the employer provides the union with amongst
other things the company’s organogram as follows:
"Organisation's organogram for the Bloemfontein Manufacturing site and also
to those other workplaces within the Republic of South Africa that operates
similar to the Bloemfontein Manufacturing site within CCBSA. This
organogram should also include the employee manning in those workplaces
and also of the employee manning for following position within the entire
CCBSA, 1. PPCs, 2. Forklift Operator, 3. Cleaner, 4. Raw materials, 5. QCs, 6.
Utilities I Processing, 7. Logistics, 8. Warehouse operators, 9. Store Clerk,
10. Artisans, 11. Syrup Maker 12. Sorters and 13 Warehouse Clerk. Applicant
to further provide, third party employees (Labour Broker and Temporary) and
positions occupied by same within the workplace."
The information provided by the employer as its organogram as provided
does no assist the process. The provided information only provides only
show numbers per department and position, it does not indicate for example
the following: 1. Number of vacant positions per department and/ or in a
position, 2. Same does not provide for the pos itions occupied by learners
per department and / or position, 3. Same does not provide for the positions
occupied by fixed term employees per department and/ or position, 4. Same
does not provide for the positions occupied by labour broker employees per
department and/ or position.
The information omitted and not reflected on the organogram impedes the
engagement on meaningful engagement on this consultative process. The
union therefore request that the Company makes that information available to
enable progressive engagement in this regard and further that, should the
Company fear of certain sensitive information to be disclosed, the union wouId
Company fear of certain sensitive information to be disclosed, the union wouId
then suggest and propose for a meeting that will facilitate for the sharing of this
information internally. This will enable the Company to project the requested
information without having to share it to the union. The union proposes
either the 23rd and/ or the 24th of October 2025 at 10H00am for this process.
8
We hope and trust you will the above in order.
Yours faithfully
National Union of Food Beverage Wine Spirits and Allied Workers”
[16] If I understood it correctly, i t was submitted, on behalf of the Union at the
hearing that, regarding the communication of 20 October 2025, it in fact
pertained to an issue other than bumping, which had been the contentious
issue up until that point. It was submitted that the information was requested
because the Union wanted to determine whether any of the Employees could
fill those vacancies (as an alternative to this dismissal). There is no merit in
this contention. I say so for three self-standing reasons.
[17] The first is that this allegation has no foundation in the papers. The
submission was made for the first time in argument. It was untethered and
unmoored from the case contained in the founding affidavit. It is trite that a
representative is not permitted to give evidence from the Bar. In fact, the
answering papers expressly state that the request was for the same purpose
that underpinned the request on 19 September 2025
4, and that request was
for the purpose of addressing the question of bumping.
[18] The second is that , seen in its proper context, this contention is not credible.
In response to the communication from the Union and on the same day,
namely 20 October 2025, the Company transmitted an email to the Unio n
which reads as follows:
“We have considered your request and have already responded to you and our
response that was given is our full and final position. We will not change our
position on bumping as we have given the union our reasons for rejecting
bumping and we stand by organogram that was shared with you. We articulated
our position in the presentation that was shared with you and reiterated the same
message in our email that was shared with you, and we said the same thing at
the CCMA during our last meeting.
4 Para 8.9 of the answering affidavit
9
We do not agree to meet with the union to discuss the request that we have
rejected on many occasions, but we are prepared to meet to discuss new
matters if any exist.
There is not employee/individual of any nature that will be retrenched to make a
space for your member that is impacted.”
[19] It is common cause that there was no response to this communication. W hilst
not every communication exchanged between parties necessarily requires a
response, this was , par excellence, a communication that cried out for a
response. W hen the Union received the correspondence quoted above, its
response was not to contact the Company to explain that the Company had
misunderstood its request and that the Company's request had nothing to do
with bumping. No satisfactory explanation was given in the papers why this
was not done.
[20] The decision to allow the C ompany to labour under the impression that it had
correctly recorded that the request related to the question of bumping and
then, belatedly, after the fact, in argument, challenge the interpretation of the
Company does not leave a good impression. As has often been said, litigation
is not a game. In my view , this maxim can be applied with equal force to
retrenchment consultations. If indeed the Union was of the view that the
Company had misinterpreted its letter (I have reservations as to whether this
is true), then it was reckless of it not to have immediately taken steps to set
the record straight and thereby to protect its members’ interests.
[21] The third is that, even if the Court is wrong and the Union is bona fide when it
contends that the information was requested for a purpose other than to
address the topic of bumping, I cannot see how, as a matter of either law or
fairness, the Company should be penalised because it, in good faith, relied on
the representations made by the Union, albeit through its conduct in not
challenging its letter . Representations can be made both by way of
challenging its letter . Representations can be made both by way of
commission and omission. In this matter, given the silence of the Union, the
Company was entitled to accept that it had no issue with its response.
10
[22] On 27 October 2025, the final facilitated meeting took place. No new issues
arose at the meeting, and on 3 November 2025, dismissal letters were issued.
The procedural issues raised by the Union
[23] The evidence before the Court indicates that there was proper and meaningful
consultation over the main bone of contention, namely that of bumping. It is
further clear that the Union had ample opportunity to make representations
regarding the proposals made by the Company and any issues relevant to the
retrenchment exercise.
[24] As to the only true procedural issues, the Union raised the following:
[24.1] There was a complaint that the Company had consulted with the other
Union, FAWU, first.
[24.2] There was a complaint that the Company did not disclose sufficient
information to render the consultation process meaningful.
[24.3] There was a complaint regarding a Mr Kenneth Ngubane.
[25] I deal with these complaints individually below.
[26] In my view, the complaint that the procedure was unfair because one Union
was consulted before another needs only to be stated to be rejected. The time
between the two consultations was minimal , and there was, correctly so, no
suggestion of any ensuing prejudice. There is no obligation on an employer to
consult with all Unions simultaneously. It is the prerogative of an employer to
consult with Unions separately should it so wish, provided that this does not
result in any prejudice, and, as mentioned, no prejudice resulted in this
matter.
[27] As to the alleged failure to disclose information, the only information
requested by the Union which was allegedly not disclosed was the details of
the individuals who occupied posts in the organogram , which had been
provided to the Union. The information was , however, irrelevant because it
concerned the identities of persons who would have been affected by the
11
bumping had this proposal been accepted by the C ompany. Once the
company, after due consultation, had refused to accept the proposal of
bumping, no purpose could have been served in providing further information
on this issue in the same way, for example, that no purpose could be served
in providing information about alternatives which have been the subject of
proper consultation but which have been rejected by an employer . The
information sought was the type that could be placed before the Labour Court
in support of an unfair dismissal claim based on an allegation that the
company unfairly refused to implement bumping. The other point is that when
the Company explained that the information was not relevant, the Union did
not join issue with, or otherwise reject, the explanation. Through its conduct, it
accepted the explanation. Having accepted the explanation, there can be little
scope to raise a complaint about it ex post facto in Court papers.
[28] Regarding Kenneth Ngubane, the Company acknowledged that it was
unfortunate that his name was initially omitted from the list of employees who
were not affected by the retrenchment exercise. However, in my view, as
submitted on behalf of the Company, the omission was timeously remedied in
that by the time that the facilitated process commenced, the confusion
regarding Mr Ngubane had been clarified. The Union provided no basis why
the consultative process which was thereafter followed resulted in prejudice or
unfairness to Mr Ngubane whose issue appeared also to be one concerning
bumping, something which was addressed by the Company as part of the
consultation process.
[29] In conclusion, no purpose would be served in reopening the consultation
process. The Court would venture to suggest that , were this course to be
followed, what would happen is that the Union would seek to resurrect the
issue of the merits of bumping, to traverse again the minutiae of the evidence
issue of the merits of bumping, to traverse again the minutiae of the evidence
surrounding this issue and to hang onto it in terrier -esque vein as it had done
in the first round of consultations . Without wishing to repeat myself ,
consultations on this aspect have been exhausted, and the place to challenge
the fairness of the decision of the Company not to embark on an exercise of
12
bumping will be in the course of litigation which attacks the substantive
fairness of the dismissals.
The formulation of the claim
What about the fact that the employees have pleaded procedural unfairness?
[30] It is necessary to say something about how the claim has been pleaded. The
founding affidavit is replete with contentions that the consultation process was
procedurally unfair, notwithstanding that the application is, in substance,
aimed at attacking the substantive fairness of the decision to dismiss the
Employees.
[31] As the Constitutional Court held in Gcaba,
5 jurisdiction is determined with
reference to the pleadings . It is up to the dominus litis to choose its cause of
action. To make use of a metaphor, when a litigant leaves the safety of the
harbour to embark on a journey of litigation, it is entitled , as of right by virtue
of its constitutional right to access to justice 6, to set its own sails and charter
its own course. It may do this irrespective of menacing skies on the horizon
and the shoals and unforgiving rock which may lie beyond the breakwater. It
does so by choosing its cause of action and outlining that cause of action
through its pleadings. There is, however, an important proviso. The pleadings
must be “properly interpreted”.7 What this means is that it is not open to a
litigant to mischaracterise a claim through wrong-labelling or sleight of hand.
As the crude adage goes, a pig with lipstick remains a pig.
[32] Post Gcaba, the Constitutional Court elaborated further on the approach to be
taken by a C ourt when ascertaining the true or real nature of a dispute in
Tshivhulana Royal Family v Netshivhulana8. The Court held that the pleadings
must be read together with, inter alia , the facts underpinning the claim,
explaining that the characterisation of a claim by a party is not definitive:
5 Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC)
6 Section 34 of the Constitution
7 Gcaba at para [75]
8 2017 (6) BCLR 800 (CC)
13
“[36] It is the Court's duty to ascertain the real or true nature of the dispute
between the parties . In conducting the inquiry the Court must look at the
substance of the dispute. The Court would have regard to various factors
including the pleadings , the facts and the relief sought. The characterisation
of a dispute by a party is not necessarily conclusive. Ascertaining the true
nature of the dispute would assist to determine whether the dispute is within
or between a traditional community and a customary institution.” 9 (own
emphasis)
[33] Our Courts have long since recognised a duty to guard against the
mischaracterisation of claims. In Nimrod Llewellyn Mortimer v Municipality of
Stellenbosch,10 as approved by the Labour Appeal Court in Booysen v the
SAPS,11 the Court, per Gauntlett AJ, stated that the formulation of a claim
must, on an objective conspectus, be “genuine”.12 In that matter, the applicant
had sought to formulate the claim in a contrived fashion so that it would fall
within the ambit of the jurisdiction of the High Court. The Court commented
that, when determining whether the High Court or a specialised labour forum
has jurisdiction, it will:
“.... have to put substance over form, bear in mind the danger of tactical
contrivance in the presentation of cases , and apply, if necessary, the criterion
of substantiality to matters where certain facts may point in one direction and
others in another.”13 (own emphasis)
[34] In Motloung v Department of Health: Free State 14, which followed the Labour
Appeal Court decision of Ekurhuleni Metropolitan Municipality v South African
Municipal Workers' Union15, the Court held as follows:
“[15] As a point of departure , jurisdiction is determined on the basis of the
case as pleaded by the litigant. In this regard, the Court only has to
consider the facts and legal grounds that support the case, as it is
pleaded. Nonetheless, it still remains the duty of the Court to
9 Footnotes omitted
pleaded. Nonetheless, it still remains the duty of the Court to
9 Footnotes omitted
10 An unreported judgment of WCD (Case No 18243/2008) delivered on 27 November 2008
11 [2011] 1 BLLR 83 (LAC) at para [52]
12 At page 20, lines 5 to 6
13 At page 15, lines 15 to 20
14 (JS 309 / 21) [2022] ZALCJHB 343
15 [2015] 1 BLLR 34 (LAC); (2015) 36 ILJ 624 (LAC)
14
determine the true or real nature of the dispute it is called on to decide,
as it may emerge from the pleaded case. In this regard, the Court
would consider the dispute as it emerges from the pleadings as a
whole, no matter how it is labelled when pleaded. In Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members it was held:
‘It is trite that the jurisdiction of the Labour Court (and the
CCMA or a council) to entertain a matter is determined from
the pleadings in the matter. It is also an established principle
that in application proceedings, the affidavits constitute the
pleadings and the evidence. While the issues between parties
generally emerge from the pleadings, it may not be readily
possible to determine what the true nature of those issues are,
or what the true nature of the dispute is, because of the
manner in which the pleadings are drafted. Therefore, the true
nature of the dispute is to be determined from an analysis of
the facts and not from the parties' characterisation of the
dispute.” (own emphasis)
[35] In Makhanya v University of Zululand,16 a case often relied upon by litigants to
contend that because they are domini litus and the masters of their destinies,
it is up to them to formulate whichever case they may wish to pursue, the
Supreme Court of Appeal, with reference to the factual substratum upon
which a claim is grounded, made it clear that , although it is the prerogative of
the parties to choose their respective causes of action, parties are not
permitted to change the nature of their claims through inaccurate descriptors.
That would be for the tail to wag the proverbial dog. The Court explained as
follows:
“…[72] The second observation is that a claim, which exists as a fact, is not
capable of being converted into a claim of a different kind by the mere use of
language. Yet that is often what is sought to be done under the guise of what
is called “characterising” the claim. Where that word is used to mean
is called “characterising” the claim. Where that word is used to mean
“describing the distinctive character of” the claim that is before the court, as a
16 [2009] ZASCA 69; 2010 (1) SA 62 (SCA)
15
fact, then its use is unexceptionable. But when it is used to describe an
alchemical process that purports to convert the claim into a claim of another
kind then the word is abused. What then occurs, in truth, is not that the claim
is converted, but only that the claimant is denied the right to assert it.” (own
emphasis)
[36] Applying the above dicta, the Court finds itself driven to conclude that the
case presented on behalf of the Union is, to a large extent, contrived and the
Union has made itself guilty of wrong labelling and mischaracterisation. There
has been a thinly veiled attempt to disguise the true nature of the claim . What
the Union has done, for the most part, is to dress up a claim concerning
alleged substantive unfairness as one concerning alleged procedural
unfairness. As a result, there has been an attempt to defeat the purpose of
section 189A(13) of the LRA.
[37] The Union was clearly alive to the challenge which it has in this regard. To
meet it, it has contended, through the vehicle of torturous reasoning and in
Alice in Wonderland- Esque17 vein, that because t here is an overlap between
procedural and substantive unfairness, it follows that substantive unfairness
may result in procedural unfairness.
[38] The founding affidavit provides, inter alia, as follows:
“7.16 In this case the questions of substantive and procedural fairness are
intertwined because, as shall be shown below, the ground upon which
CCBSA alleges that the Applicants’ roles have become redundant are
demonstrably untrue. That reality ‘contaminates’ the procedure as unfair. A
procedure meant to further a cause based on false allegations cannot escape
the ‘contaminative’ effect of the true intention.”
[39] The heads of argument provide, inter alia, as follows:
“3.2 It is submitted that CCBSA has misdirected itself on a point of law. As the
Courts acknowledge, it is often difficult to separate substantive
Courts acknowledge, it is often difficult to separate substantive
17 In Lewis Carroll’s Through the Looking Glass , published by Macmillan and Co. on 27 December
1871, everything is inverted, including logic and where, for example, walking away from something
brings one towards it.
16
fairness from procedural fairness which is governed by s189A . It will
be unavoidable in some aspects to touch on what may appear to be
substantive merits in order to show that the procedure applied to retrench
the Applicants was unfair.”
[40] The paragraphs quoted above reveal an ouroboros of deduction characterised
by dizzying circular reasoning. The submission that substantive unfairness
can result in procedural unfairness is , to put it euphemistically, a novel
proposition. Whether a dismissal is procedurally or substantively unfair
involves discrete enquiries into fairness: one into the reason for the dismissal
and the other into the process leading up to the dismissal. I t is true that a
procedure may be so fundamentally defective that it renders a dismissal
substantively unfair because, for example, the C ourt is not in a position to
determine whether, had a fair procedure been followed, the employees in
question would have been dismissed 18. In that sense, procedural unfairness
may result in substantive unfairness. But the converse is not true. In a sense,
there is then what may be perceived as an asymmetry. It is that procedure
can be instrumental in testing substantive fairness, whereas substance is not
instrumental in determining whether a procedure was fair. Profound
procedural unfairness may undermine the subs tantive fairness of a dismissal ,
but there is no reciprocal principle holding that, if a dismissal is substantively
unfair, it may , for this reason, render it procedurally unfair. If the argument
presented on behalf of the Union were to be accepted, it would mean that two
different Courts could, in the same matter , pronounce on the question of
substantive fairness and there would then be scope for conflicting judgments
on the same issue between the same parties.
Costs
[41] The Company, understandably so, sought to persuade the Court, as a mark of
its displeasure, to order costs on a punitive scale. In essence, the contention
its displeasure, to order costs on a punitive scale. In essence, the contention
was that there had been an abuse of the Course process. What constitutes an
abuse of process has been the subject of much debate in our jurisprudence.
18 SACTWU and Others v Discreto (a division of Trump & Springbok Holdings) (1998) 19 ILJ 1451
(LAC) at para [15]
17
In Zuma19, the High Court, in a decision which was confirmed on appeal, dealt
extensively with what constitutes an abuse of the Court process.
[42] The Court made the following observations:
“[70] Our courts have not attempted to have an all -encompassing
definition of what is meant by an abuse of process. Over the years there
have been a number of instances in which the courts have deemed it
appropriate to intervene and arrest an abuse of process which include those
instances where proceedings have been instituted for an ulterior and/or
improper purpose and for an improper and/or ulterior motive.
[71] In Lawyers for Human Rights v Minister in the Presidency and
Others, the following was said:
‘In Beinash, Mahomed CJ stated that there could not be an all-encompassing
definition of 'abuse of process' but that it could be said in general terms “that
an abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit of the truth are used for a purpose
extraneous to that objective.” The court held:
“There can be no doubt that every Court is entitled to protect itself and others
against an abuse of its processes. Where it is satisfied that the issue of a
subpoena in a particular case indeed constitutes an abuse it is quite entitled
to set it aside. As was said by De Villiers JA in Hudson v Hudson and
Another 1927 AD 259 at 268:
“When…the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice, it is the duty of the
Court to prevent such abuse.”
…It can be said in general terms…that an abuse of process takes place
where the procedures permitted by the Rules of the Court to facilitate the
pursuit of the truth are used for a purpose extraneous to that objective.’”
[72] Our courts have an inherent power to prevent an abuse of court
process. Initially the courts intervened to prevent an abuse of process in
process. Initially the courts intervened to prevent an abuse of process in
19Maughan v Zuma and Others (12770/22P;13062/22P) [2023] ZAKZPHC 59; [2023] 3 All SA 484
(KZP); 2023 (5) SA 467 (KZP); 2023 (2) SACR 435 (KZP) (7 June 2023)
18
circumstances where the power to do so was exercised with the greatest
caution and only in a clear case. De Villiers JA writing for a Full Court
in Hudson v Hudson and Another held the following:
‘That every court has the inherent power to prevent an abuse of the
machinery provided for the purpose of expediting the business of the Court
admits of no doubt.…” (own emphasis)
[43] If this Court was to endorse the Union's litigation plan, it would be giving its
blessing to a strategy which is calculated to defeat the purpose of section
189A(13) which is to empower the Court to play a supervisory role when it
comes to material questions of procedural fairness in the context of a
retrenchment exercise. It would effectively afford the U nion and its members
the right to challenge the substantive fairness of their dismissals on an urgent
basis, which would, in turn, inter alia , raise the spectre of res judicata and/or
issue estoppel should a dispute about the fairness of the dismissal
subsequently be referred for adjudication.
[44] In my view, the conduct of the Union, if it does not rise to the level of an abuse
of the process, comes perilously close to doing so. Given the calculated
manner in which the affidavit was formulated, I find it difficult to accept that
this was a case of mere muddled thinking. It seems to me that the Union has
employed section 189A(13) for an ulterior purpose, i.e., to impugn the
substantive fairness of the Employees' dismissals, and thus to prosecute, for
the most part, a case that was obviously unsustainable. Another way of
putting it is that the case presented on behalf of the Employees was, save for
a handful of relatively inconsequential points regarding procedural fairness,
legally untenable and, in that sense, hopeless.
20 The matter came before the
Court on a crowded urgent Roll in the December 2025 recess. The
application, which took the form of a legal juggernaut , was the type of
application, which took the form of a legal juggernaut , was the type of
application which, owing to its volume and lack of merit, has the potential to
20 Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer Food (Pty)
Ltd and Others 2013 (2) SA 213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 ( SCA) at para
[35]
19
destroy the utility of the urgent Roll. For these reasons, a costs order should
be made.
[45] I am aware of the ongoing relationship between the Union and the Company.
However, having reflected on the matter, in my view , this factor is outweighed
by the circumstance that the Union has litigated disingenuously in prosecuting
the application. Expressed differently, this is not a case where the existence of
an ongoing relationship can be utilised as a shield against a costs order. The
Court has further given serious consideration to awarding a punitive costs
order, but has ultimately decided against this. Other litigants who institute
litigation along the lines of that pursued by the Union may not be so fortunate.
Given, inter alia , the importance and volume of the matter, in my view , the
costs should be awarded on Scale C.
Order
1. The application is urgent and any non-compliance with the Rules is condoned.
2. The application is dismissed.
3. The Applicant is to pay the costs associated with the bringing of the
application on Scale C.
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: V M G Ndiweni
Instructed by: AMN Attorneys Inc
20
For the First Respondent: C Orr SC
Instructed by: Bowman Gilfillan Incorporated