CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 367/24

In the matter between:


NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA First Applicant

BHEKABANTU MJWENI Second Applicant

PATRICK NDLOVU Third Applicant

TREVOR NTULI Fourth Applicant

MBONGELENI D DLAMINI Fifth Applicant

DEON VAN DER BYL Sixth Applicant

NORMAN THWALA Seventh Applicant

and

INDUSTRIAL OLEO CHEMICAL PRODUCTS Respondent



Neutral citation: National Union of Metalworkers of South Africa and Others v
Industrial Oleo Chemical Products [2026] ZACC [22]

Coram: Maya CJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ,
Rogers J, Theron J and Tshiqi J


Judgments: Tshiqi J (majority): [1] to [68]
Theron J (minority): [69] to [107]

2
Heard on: 30 September 2025

Decided on: 29 May 2026

Summary: Labour Relations Act 66 of 1995 — section 189A(7)(b)(ii) —
section 191(11) — dismissals based on operational requirements
— facilitation — conciliation a s a jurisdictional precondition to
adjudication by the Labour Court




ORDER



On application for leave to appeal from the Labour Appeal Court (hearing an appeal
from the Labour Court):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Labour Appeal Court is set aside.
4. The order of the Labour Court is reinstated, and the matter is remitted to
the Labour Court to decide the merits of the applicants’ case.
5. There is no order as to costs.



JUDGMENT




TSHIQI J (Kollapen J, Mathopo J, Mhlantla J and Rogers J concurring):


Introduction
[1] This is an application for leave to appeal against the judgment and order of the
Labour Appeal Court (LAC). What began as a dispute over the fairness of dismissals
based on operational requirements, spiralled into a dispute concerning the jurisdiction

TSHIQI J
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of the Labour Court to adjudicate over allegedly unfair mass retrenchment -related
dismissal disput es after a failed facilitation process. 1 This Court is required to
determine this very issue.

[2] The application challenges the LAC’s interpretation of section 189A(7)(b)(ii),2
read with section 191(11), 3 of the Labour Relations Act (LRA), which found that after
a failed facilitation in the context of mass retrenchments, the parties have to refer the
dismissal dispute for conciliation before approaching the Labour Court to adjudicate the
matter.

Parties
[3] The first applicant is the National Union of Metalworkers of South Africa
(NUMSA). The second to seventh applicants are members of NUMSA, namely:
Bhekabantu Mjweni, Patrick Ndlovu, Trevor Ntuli, Mbongeleni D Dlamini, Deon van
der Byl and Norman Thwala (collectively, together with NUMSA, referred to as the
applicants). The respondent is Industrial Oleo Chemical Products , a business of AECI
Chemicals.


1 A facilitation process embarked on under section 189A of the Labour Relations Act 66 of 1995 (LRA) .
2 Section 189A(7) of the LRA reads as follows:
“If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the
date on which notice was given in terms of section 189(3)—
(a) the employer may give notice to terminate the contracts of employment in accordance
with section 37(1) of the Basic Conditions of Employment Act; and
(b) a registered trade union or the employees who have received notice of termination may
either—
(i) give notice of a strike in terms of section 64(1)(b) or (d); or
(ii) refer a dispute concerning whether there is a fair reason for the dismissal to
the Labour Court in terms of section 191(11).”
3 Section 191(11) of the LRA reads as follows:
“(a) The referral, in terms of subsection (5)(b), of a dispu te to the Labour Court for

“(a) The referral, in terms of subsection (5)(b), of a dispu te to the Labour Court for
adjudication, must be made within 90 days after the council or (as the case may be) the
commissioner has certified that the dispute remains unresolved.
(b) However, the Labour Court may condone non -observance of that timeframe on good
cause shown.”

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Background and litigation history
[4] In early 2020, the respondent undertook a large-scale retrenchment exercise due
to operational concerns, that resulted in the dismissal of the applicants in July 2020.
The applicants initially approached the Labour Court on an urgent basis, in terms of
section 189A(13) of the LRA. 4 They alleged that in the facilitation meetings , the
respondent had already predetermined the employees that it intended to dismiss, and
that they were not provided with an opportunity to make representations against the
respondent’s findings on the ir dismissals. The applicants succeeded in their urgent
application and were reinstated , and a new consultation process before a nother
facilitator commenced in terms of section 189A of the LRA. This new facilitation
process resulted in the dismissal of the applicants on 12 November 2020.

Labour Court
[5] Following the dismissal, and after a failed facilitation process, the applicants
referred a dispute to the Labour Court in terms of section 189A(7)(b)(ii) of the LRA.
The respondent raised a preliminary point, submitting that the applicants were required
to first refer the unfair dismissal dispute to the Commission for Conciliation, Mediation
and Arbitration (CCMA) or a Council5 before they could approach the Labour Court.
Simply put, the respondent co ntended that after a failed facilitation, dismissed
employees cannot bypass conciliation and directly approach the Labour Court.

4 Section 189A(13) of the LRA reads:
“If an employer does not comply with a fair procedure, a consulting party may approach the
Labour Court by way of an application for an order—
(a) compelling the employer to comply with a fair procedure;
(b) interdicting or restraining the employer from dismissing an employee prior to
complying with a fair procedure;
(c) directing the employer to reinstate an employee until it has complied with a fair
procedure;

procedure;
(d) make an award of compensation , if an order in terms of paragraphs (a) to (c) is not
appropriate.”
5 “Council” as defined in section 213 of the LRA includes bargaining councils and statutory councils.

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According to the respondent, this meant that the Labour Court lacked jurisdiction to
determine the unfair dismissal dispute, since conciliation had not first taken place.

[6] The Labour Court dismissed the respondent’s preliminary point.6 It held that it
is not necessary to refer a dispute to conciliation once a facilitation process in terms of
section 189A(7) of the LRA has taken place. If conciliation was required, so the
Labour Court reasoned, the LRA would have prescribed that a dispute be referred to the
Labour Court in terms of section 191(1),7 and not in terms of section 191(11). The
Labour Court jud gment also made mention of the Regulations for the Conduct of
Facilitations in terms of Section 189A8 (Regulations), an obiter (in passing) remark in
Edcon9 and the finding in Bell10 to further support its analysis.

Labour Appeal Court
[7] On appeal, the LAC found differently.11 It held that a referral of a dismissal
dispute to the CCMA for conciliation is mandatory after the failure of a facilitation

6 NUMSA v Industrial Oleo Chemical Products [2022] ZALCD 14 (Labour Court judgment).
7 Section 191(1) of the LRA reads as follows:
“(a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour
practice, the dismissed employee or the employee alleging the unfair labour practice
may refer the dispute in writing to—
(i) a council, if the parties to the dispute fall within the registered scope of that
council; or
(ii) the Commission, if no council has jurisdiction.
(b) A referral in terms of paragraph (a) must be made within—
(i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the
employer making a final decision to dismiss or uphold the dismissal;
(ii) 90 days of the date of the act or omission which allegedly constitutes the
unfair labour practice or , if it is a later date , within 90 days of the date on

unfair labour practice or , if it is a later date , within 90 days of the date on
which the employee became aware of the act or occurrence.”
8 Regulations for the Conduct of Facilitations in terms of Section 189A, GN R1445 GG 25515, 10 October 2003.
9 Edcon v Steenkamp [2015] ZALAC 2; 2015 (4) SA 247 (LAC); [2015] 6 BLLR 549 (LAC); (2015) 36 ILJ 1469
(LAC).
10 National Union of Metalworkers of SA on behalf of Members v Bell Equipment Co SA (Pty) Ltd [2010] ZALC
217; (2011) 32 ILJ 382 (LC).
11 Industrial Oleo Chemical Products v National Union of Metalwor kers of South Africa [2024] ZALAC 53;
[2025] 1 BLLR 1 (LAC); (2025) 46 ILJ 328 (LAC) (Labour Appeal Court judgment).

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process. The LAC found that there is a functional distinction between facilitation and
conciliation.12 It relied on SAA Technical13 to conclude that section 189A is concerned
only with what should happen during the consultation process and not with what
happens after the consultations have taken place. Relying on SAA Technical, the LAC
held the view that a “dismissal is . . . a fresh dispute . . . from the ‘consultation’ causa
[(cause of action)]”.14 The LAC cited this Court’s decision in Ngululu,15 to observe that
section 191 requires disputes about unfair dismissals to be referred to conciliation “with
the exercise of the Labour Court’s jurisdiction deferred until a dispute has been
conciliated”.16 In the LAC’s view, this accords with the legislative structure of the
LRA – which requir es parties to a dispute to first exhaust non -litigation dispute
resolution mechanisms before approaching the courts for assistance. 17 The LAC
accordingly held that, notwithstanding the facilitation process, a referral of the dismissal
dispute to conciliation, after mass retrenchments, was mandatory.18 Aggrieved by the
LAC’s decision, the applicants approach this Court for relief.

Issues to be determined in this Court
[8] This Court is required to make a pronouncement on the following:
(a) Whether this Court’s jurisdiction is engaged and , if so, whether leave to
appeal should be granted.
(b) Whether section 189A(7)(b)(ii) of the LRA requires the parties to first
refer a dismissal dispute for conciliation after a failed facilitation, before

12 Id at para 17.
13 National Union of Metalworkers of SA on behalf of Members v SAA Technical SOC Ltd [2024] ZALAC 41;
[2024] 12 BLLR 1259 (LAC); (2024) 45 ILJ 2524 (LAC).
14 Id at para 24.
15 Association of Mineworkers and Construction Union v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) [2020]

ZACC 8; 2020 (7) BCLR 779 (CC); [2020] 10 BLLR 959 (CC); (2020) 41 ILJ 1837 (CC). Please note that the
Labour Appeal Court judgment above n 11 at para 15 refers to “Remhoogte Plant Hire and Others v Jac ob Durr
Trust and Others”, while citing the same citation as Ngululu. This is a clerical error.
16 Labour Appeal Court judgment id. See also Ngululu id at para 16.
17 Labour Appeal Court judgment id.
18 Id at para 18.

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a dismissal dispute arising from mass retrenchments can be referred to the
Labour Court.
(c) If the answer to (b) is negative, what the purpose is of the reference to
section 191(11) in section 189A(7)(b)(ii) of the LRA.

Jurisdiction and leave to appeal
[9] The applicants submit that this Court’s jurisdiction is engaged as the matter
raises—
(a) the interpretation of the LRA;
(b) the right to fair labour practices as prescribed in section 23(1) of the
Constitution;19 and
(c) the right of access to the Labour Court, a facet of the right guaranteed
under section 34 of the Constitution.20

[10] It is further submitted that this Court’s jurisdiction is engaged because the case
raises arguable points of law of general public importance, envisaged under
section 167(3)(b)(ii) of the Constitution, 21 as the relevant provisions of the LRA have
been interpreted differently in two previous cases in the Labour Court.


19 Section 23(1) of the Constitution states that everyone has the right to fair labour practices.
20 Section 34 of the Constitution reads as follows:
“Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing bef ore a court or, where appropriate, another independent and
impartial tribunal or forum.”
21 Section 167(3)(b) of the Constitution reads as follows:
“(3) The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by that
Court.”

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[11] The respondent concedes that this matter engages this Court’s jurisdiction, but
argues that leave to appeal should be refused as the appeal does not enjoy prospects of
success. The basis of the respondent’s assertion is that the LAC has twice rejected the
applicants’ argument, and that this Court in Intervalve22 endorsed the principle that
conciliation is a precondition to the Labour Court’s jurisdiction. The respondent
submits that section 189A(7) of the LRA is no exception to this principle.

[12] I agree that this matter engages both legs of this Court’s jurisdiction under
section 167(3)(b)(i) and (ii) of the Constitution. Considering that the LRA’s provisions
have been interpreted differently in two previous cases before the Labour Court, it is in
the interests of justice for this Court to provide clarity on the issue. Leave to appeal
must therefore be granted.

Legislative framework
[13] Prior to the enactment of section 189A of the LRA in 2002, all disputes on
dismissals based on operational requirements were adjudicated by the Labour Court as
disputes of “right” under section 189 of the LRA. 23 Section 189A was introduced to
address substantive and procedural fairness in large-scale retrenchments. It establishes,
amongst others, a facilitated consultation process and an option to strike .24 Upon the
failure of the facilitation process, section 189A(7) of the LRA provides employees 25

22 National Union of Metalworkers of SA v Intervalve (Pty) Ltd [2014] ZACC 35; 2015 (2) BCLR 182 (CC);
[2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC).
23 Du Toit Labour Law Through the Cases issue 26 at 8-78 (15).
24 Id. See also section 189A(3) of the LRA, which states:
“The [CCMA] must appoint a facilitator in terms of any regulations made under subsection (6)
to assist the parties engaged in consultations if—
(a) the employer has in its notice in terms of section 189(3) requested facilitation; or

(a) the employer has in its notice in terms of section 189(3) requested facilitation; or
(b) consulting parties representing the majority of employees whom the employer
contemplates dismissing have requested facilitation and have notified the [CCMA]
within 15 days of the notice.”
25 Or a registered trade union, acting in a representative capacity.

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with an election to resort to strike action 26 or refer an unfair dismissal dispute to “the
Labour Court in terms of section 191(11)”.27

[14] According to the applicants, the 2002 amendment means that a dispute
concerning mass retrenc hments can be referred directly to the Labour Court through
section 189A(7)(b)(ii) once facilitation has failed. The respondent disagrees with this
interpretation and maintains that section 189A(7)(b), read with section 191(11), only
triggers the Labour Court’s jurisdiction “after prior referral to conciliation” has
occurred.

Principles of statutory interpretation
[15] When interpreting section 189A(7)(b)(ii) of the LRA, this Court must have
regard to section 39(2) of the Constitution, which reads:

“When int erpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote the spirit, purport and
objectives of the Bill of Rights.”

[16] Additionally, section 3 of the LRA provides:

“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”

[17] Recently, this Court in Regenesys28 emphasised that the correct approach to the
interpretation of legislation, particularly the LRA, is to ensure that the interpretation

26 In terms of section 189A(7)(b)(i) of the LRA.
27 Section 189A(7)(b)(ii) of the LRA.
28 Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga [2024] ZACC 8 ; 2024 (5) SA 593 (CC); 2024 (7)
BCLR 901 (CC); [2024] 8 BLLR 777 (CC); (2024) 45 ILJ 1723 (CC).

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aligns with section 39(2) of the Constitution.29 This essentially requires us to examine
the objects and purpose of the LR A and to interpret its provisions in conformity with
the Constitution. Therefore, statutory interpretation necessitates consideration of the
text, context and purpose of the provisions of the LRA. This Court in Regenesys quoted
the purpose of the LRA, as stated in section 1, as to—

“advance economic development, social justice, labour peace and the democratisation
of the workplace by fulfilling the primary objects of this Act, which are—
(a) to give effect to and regulate the fundamental rights conferred by section 23 of
the Constitution of the Republic of South Africa, 1996;
(b) to give effect to obligations incurred by the Republic as a member state of the
International Labour Organisation;
(c) to provide a framework within which employees and their trade unions,
employers and employers’ organisations can—
(i) collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
(d) to promote—
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.”30

[18] Additionally, the principles for the interpretation of documents in genera l,
including statutes, have been authoritatively set out in Endumeni:31

“Interpretation is the process of attributing meaning to the words used in a
document . . . having regard to the context provided by reading the particular provision

29 Id at paras 62-3.
30 Id at para 63.
31 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 BPLR 133 (SCA);
[2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA).

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or provisions in the light of the document as a whole and the circumstances attendant
upon its coming into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production . . . . The
process is objective, not subjective. A sensible meaning is to be preferred to one that
leads to insensible or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike for the words actually used. To do
so in regard to a statute is to cross the divide between interpretation and legislation. . . .
The ‘inevitable point of departure is the language of the provision itself’, read in
context and having regard to the purpose of the provision.”32 (Emphasis added.)

[19] It follows that, in interpreting section 189A(7)(b)(ii) of the LRA, we must start
by looking at the language of the provision; however, the language must be considered
in context and there must be regard to the purpose of the provision. The purpose, as
already observed, is, amongst others, to provide for the adjudication of disputes about
procedural fairness in mass retrenchments at an earlier stage of the ordinary dispute
resolution process, and to provide for their determination, inevitably as a matter of
urgency, on application rather than by way of referral. This purpose will be kept in
mind when determining the issue at hand: whether employees who have gone through
facilitation may approach the Labour Court without pursuing conciliation in respect of
the dismissal dispute.

Does the interpretation of section 189A(7)(b)(ii) of the Labour Relations Act require

Does the interpretation of section 189A(7)(b)(ii) of the Labour Relations Act require
conciliation after a failed facilitation, before a dispute can be referred to the
Labour Court?
The distinction between facilitation and conciliation
[20] The applicants concede that there is a difference between the roles of facilitation
and conciliation but maintain that this is not a decisive factor in the present enquiry.

32 Id at para 18.

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They conclude by stating that facilitation, and the engagement entailed by it, should be
held to be sufficient in the context of a dismissal post-facilitation.

[21] The respondent argues that facilitation and conciliation are fundamentally
different. In the case of a facilitator, they are appointed to assist the parties engaged in
section 189A consultations by essentially chair ing the consultation process and
encouraging the parties to reach their own agreement. It contends that the process is
sui generis (unique), and that the facilitator is neither an arbitrator nor a conciliator.

[22] The respondent submits that during the 60 -day period when a facilitator is
appointed, the parties are not in dispute but are instead engaged in a meaningful, joint
consensus-seeking process which can only result in a dispute once the employer resorts
to dismissing the employee s. It is further argued that such a referral is designed to
protect the interests of the parties and reduce the costs of litigation. The respondent
raises the fact that dispute conciliation is an expeditious process of 30 days, compared
to that of the adjudication of a dismissal dispute by the Labour Court.

[23] The respondent lists a few main differences between the two processes, namely:
a facilitator is appointed at a different time; a facilitator performs different tasks; and
facilitation, in practice, does not involve proper consultation (in this regard, the
respondent made an example at the hearing that trade unions usually oppose any idea
of retrenchment). Th e respondent disagrees with the applicants’ assertion that after
failed facilitation, there is nothing left to discuss during the conciliation of a resultant
dismissal dispute that has not already been discussed during facilitation.

[24] I accept that facilita tion occurs during the retrenchment consultation stage,
before dismissal (a forward -looking process), whilst conciliation, if it is necessary,

before dismissal (a forward -looking process), whilst conciliation, if it is necessary,
would occur after a dismissal has taken place (a backward -looking process). The
fundamental difference is that f acilitation is consultative and pre -emptive, while
conciliation is remedial and reactive.

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[25] It is helpful to contrast section 189A(7) with section 189A(8).33 The former deals
with a case such as the present, where there has been facilitation. The latter deals with
a case where there has not been facilitation. What gets referred to conciliation in terms
of section 189A(8)(a) is not a dismiss al dispute but a pre -dismissal interest dispute
about whether there are fair reasons for retrenchment, selection criteria and so forth .
The respondent’s submission, which in this limited respect makes se nse to me, is that
where there has been fa cilitation as contemplated in section 189A(7), the interest
dispute will have been debated through a process which, although different from
conciliation in certain respects, is aimed at reaching consensus in disputes centred
around retrenchments. Both pro cesses – facilitation and conciliation – are meant to
assist the parties to explore ways that retrenchments could be avoided or mitigated.

[26] When considering the differences between facilitation and conciliation in the
context of section 189A(7)(b)(ii), these differences appear to be academic. There seems
to be little to no benefit to post -facilitation conciliation regarding the substantive
fairness of ensuing dismissals, and counsel for the respondent was unable to substantiate
the fundamental differences between the two processes.

[27] I accept that facilitation and conciliation are distinct in that one mechanism
primarily aims to assist with communication and the other with reaching an agreement.
However, it seems that the parties will be discussing, at lea st fundamentally, the same

33 Section 189A(8) of the LRA reads:
“If a facilitator is not appointed—
(a) a party may not refer a dispute to a council or the [CCMA] unless a period of 30 days
has lapsed from the date on which notice was given in terms of section 189(3); and
(b) once the periods mentioned in section 64(1)(a) have elapsed—

(b) once the periods mentioned in section 64(1)(a) have elapsed—
(i) the employer may give notice to terminate the contract s of employment in
accordance with section 37(1) of the Basic Conditions of Employment Act ;
and
(ii) a registered trade union or the employees who have received notice of
termination may—
(aa) give notice of a strike in terms of section 64(1)(b) or (d); or
(bb) refer a dispute concerning whether there is a fair reason for the
dismissal to the Labour Court in terms of section 191(11).”

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issues in a subsequent conciliation over the fairness of the retrenchment dismissals as
they would have discussed in the facilitation process. I accept that certain issues might
not have been raised during facilitation or might arise for determination thereafter.
However, nothing prevents parties to a retrenchment dispute from discussing those
issues and utilising other means such as pre -hearing meetings that entail
consensus-seeking.

[28] Because facilitation happens before the actual dismissal, the focus will naturally
be on ways to avoid retrenchments or mitigate them. If conciliation were to be insisted
upon after facilitation has failed and notices of dismissal have been issued, the focus
will still be on whether the retrenchments were justified, whether the selection criteria
were fair, the fairness of the retrenchment packages and so forth. These are the matters
that would have been the subject of the failed facilitated consultation. The point is that
the agenda in both instances concerns the retrenchments and the aim is to reach
consensus about the fairness of the retrenchment process and retrenchment packages.
This renders a referral of the dismissal dispute to the CCMA duplicative.

[29] Where, however, there has been no facilitation, the lawmaker in section 189A(8)
wanted the parties to debate their interest dispute over possible retrenchments in a
conciliation process that would take the place of facilitation. Those stages of the process
would, as with section 189A(7), take 60 days.34

[30] In both section 189A(7) and (8), dismissed employees have two options once the
employer has given dismissal notices: to strike or to refer a dismissal dispute to the
Labour Court. In terms of section 64(1)(a), employees may not ordinarily strike over a
dispute unless 30 days have expired from the referral of the dispute to conciliation. It
is clear from a reading of section 189A(7) that employees may resort to strike action

is clear from a reading of section 189A(7) that employees may resort to strike action
over retrenchment dismissals despite the fact that the dismissal dispute has not been
referred to conciliation. Section 189A(7) and (8) require only that the 60-day period of

34 The applicable time periods are computed as follows: 60 days in terms of section 189A(7) of the LRA, and two
30-day periods in terms of section 189A(8)(a) and (b) read with section 64(1)(a).

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forward-looking, pre-dismissal facilitated consultation (subsection (7)) or consultation
and conciliation (subsection (8)) over possible retrenchments should have been
exhausted. It does not make sense that those who opt for strike action should have a
right to strike after receiving a letter of dismissal from the employer, without first
exploring conciliation in respect of the dismissal dispute, but those who do not opt for
strike action but want to pursue a court process are obliged to go through a conciliation
process.

[31] If the Legislature intended that conciliation over retrenchment dismissals should
follow after failed facilitation, it would have been necessary to incorporate such a
requirement specifically. And if the correct interpretation is that after a failed
facilitation it is necessary to resort to conciliation over a dismissal dispute before such
dispute can be referred to the Labour Court, then this requirement would apply even in
cases where the employees opt for strike action, yet there is no such requirement in the
latter instance.

[32] The LAC was right in Edcon to say that “ [w]here there has been a facilitation
process, it would be [an] unnecessary duplication to require an additional 30 -day
conciliation process at the end of the 60-day period allowed for facilitation”.35 I accept
that the statement was obiter, but I think it is correct.

[33] One of the matters that need s to be considered in determining whether
conciliation is required before the referral of mass retrenchment disputes to the
Labour Court is whether t he process of conciliation itself is a precondition to the
Labour Court’s jurisdiction.

[34] The respondent submits that section 189A(7)(b) of the LRA does not simply
permit a referral to the Labour Court but includes the condition that the referral to the
Labour Court is made “in terms of section 191(11)”. It further argues that

35 Edcon above n 9 at para 15.

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section 191(11), which in turn references section 191(5)(b),36 indicates that the
Labour Court has jurisdiction only once a Council or the CCMA commissione r has
certified that the dispute remains unresolved. 37 It submits that the language in
section 191(11) thus clearly indicates that such a referral will follow only after
conciliation. According to the respondent, the failure of the forward-looking facilitation
process does not mean that there was any effort at resolution of the backward -looking
dismissal dispute or that the resolution has failed. It contends that an attempt at
resolution of the dismissal dispute must occur during the course of conciliation.

[35] As previously mentioned, the respondent relies on Intervalve to advance the
argument that the reference to section 191(5)(b) in section 191(11) operates to confirm
that conciliation is a precondition to the Labour Court’s jurisdiction. 38 However, the
context in Intervalve is different from the matter before us, in that Intervalve concerned
an ordinary dismissal dispute. This required an interpretation of section 191 of the
LRA. It is uncontroversial that in that context a precondition for referring a dismissal
dispute to the Labour Court is that the dispute should have been the subject of a failed
conciliation. The present application, by contrast, requires a specific interpretation of
section 189A(7)(b)(ii) in the context of a failed fa cilitation process in mass
retrenchments. Section 189A did not feature at all in Intervalve.

[36] In Intervalve, employees were dismissed after participating in an unprotected
strike. NUMSA referred an unfair dismissal dispute to the bargaining council on behalf

36 Section 191(5)(b)(ii) of the LRA provides:
“(5) If a council or a commissioner has certified that the dispute remains unr esolved, or if 30 days
or any further period as agreed between the parties have expired since the council or the

or any further period as agreed between the parties have expired since the council or the
[CCMA] received the referral and the dispute remains unresolved—
. . .
(b) the employee may refer the dispute to the Labour Court for adjudication if the employee
has alleged that the reason for dismissal is—
. . .
(ii) based on the employer’s operational requirements.” (Emphasis added.)
37 The respondent makes reference to National Union of Metalworkers of SA v SA Five Engineering [2004] ZALC
81; (2004) 25 ILJ 2358 (LC); [2005] 1 BLLR 53 (LC) at para 14.
38 Intervalve above n 22 at para 40.

TSHIQI J
17
of the dismissed employees, citing only one of the employers, namely, Steinmüller
Africa (Pty) Limited (Steinmüller), when in reality some of the employees were
employed by Intervalve (Pty) Limited (Intervalve) and BHR P iping Systems (Pty)
Limited (BHR). Steinmüller, Intervalve and BHR shared the same premises and human
resources services, and the attorney who represented Steinmüller in the conciliation
proceedings subsequently represented Intervalve and BHR in opposing their joinder.

[37] NUMSA later attempted to join Intervalve and BHR by way of a second referral,
but the late referral was not condoned. In the circumstances, NUMSA brought the first
referral to the Labour Court and sought to join Intervalve and BHR. The Labour Court
permitted the joinder of Intervalve and BHR, given that: (a) the entities had shared
resources; (b) transfers of employees took place without termination of their
employment; and (c) the dismissal letters issued to their respective employees were
identical, and so the failure to cite Intervalve and BHR in the first referral was not fatal.

[38] The LAC overturned the Labour Court’s decision, finding that NUMSA did not
timeously refer the dispute against Intervalve and BHR to conciliation as prescribed by
section 191 of the LRA. The LAC reasoned this way because Intervalve and BHR had
not been cited in the referral for conciliation, only Steinmüller was cited. Consequently,
the Labour Court did not have jurisdiction to then join Intervalve and BHR. This Court
dismissed an appeal against the LAC’s judgment.

[39] Intervalve was decided in the context of a dismissal resulting from strike action.
This entailed a determination of the gener al process to be followed in disputes about
unfair dismissals and unfair labour practices as envisaged in section 191 of the LRA ,
and not section 189A(7)(b)(ii) in the context of a failed facilitation process in mass
retrenchments.

retrenchments.

[40] It is clear that the LAC and this Court in Intervalve were not pronouncing on the
process to be adopted in dismissals resulting from mass retrenchments because the case
concerned dismissals regulated by section 191 of the LRA and not dismissals regulated

TSHIQI J
18
by section 189A(7)(b)(ii). The Legislature deemed it necessary to have a separate
dispensation for disputes resulting from mass retrenchments. This Court in Steenkamp39
has already endorsed the Labour Court’s description of the purpose of the amendments
to the LRA thus:

“The purpose of section 189A(13) has been recognised in a long line of cases. In
Insurance & Banking Staff Association40 the Labour Court explained:

‘The overriding consideration under section 189A is to correct and prevent
procedurally unfair retrenchments as soon as procedural flaws are detected,
so that job losses can be avoided. Correcting a procedurally flawed mass
retrenchment long after the p rocess has been completed is often
economically prohibitive and practically impossible. All too often the
changes in an enterprise with the passage of time deter reinstatement as a
remedy. So, the key el ements of section 189A are: early expedited,
effective intervention and job retention in mass dismissals. ’”41 (Footnote
added.)

[41] The common sentiment expressed in both of these matters is that
section 189A(13) of the LRA was introduced to speed up the process of intervention in
mass retrenchments. It is clear that a speedy resolution of such procedural flaws is
needed. What then happens if the facilitation fails? Does it become necessary for the
parties to go back and embark on the very process that was discontinued in order to
resolve these disputes quickly?

[42] Another source of concern is that , whilst the old process was discontinued
because of the length of time it took, if it is held that it is necessary to go through a
conciliation process after a failed facilitation process, then the period that will elapse
will be even longer than the period sought to be replaced through the amendment.

39 Steenkamp v Edcon L td [2019] ZACC 17; 2019 (7) BCLR 826 (CC); [2019] 11 BLLR 1189 (CC) ; (2019) 40
ILJ 1731 (CC).

ILJ 1731 (CC).
40 Insurance & Banking Staff Association v Old Mutual Services & Technology Administration (2006) 27 ILJ 1026
(LC) at para 9.
41 Steenkamp above n 39 at para 52.

TSHIQI J
19

[43] Since this Court in Intervalve did not make a pronouncement in the context of
section 189A(7)(b)(ii) of the LRA, I shall now conduct this analysis in this context. The
text is clear that section 189A(7)(b)(ii) allows for a direct referral to the Labour Court.
It is an unequivocal, jurisdiction-conferring provision. The Labour Court’s jurisdiction
is immediately engaged under this section and it does not require the parties to pass
another “jurisdictional hu rdle” before approaching the Labour Court. It would be
contrary to our legal framework to expect litigants to pass through two “jurisdictional
hurdles” before en gaging the Labour Court, and would unjustifiably limit the
applicants’ rights envisaged in sec tion 34 of th e Constitution. This clarity leaves no
room for doubt that conciliation is not a prerequisite under this provision. While
section 191(11) is referenced, it does not trigger the conciliation requirements found in
section 191(5)(b).

[44] Counsel for the respondent conceded during the hearing that section 191(5)(b) is
a jurisdiction -conferring provision. The language used in section 191, specifically
section 191(1), (5)(b) and (11) , references a referral to conciliation, and not that
conciliation must have actually taken place.

[45] In Driveline,42 the Labour Court held that conciliation does not have to be
“meaningful”, as the LRA only appears to require that conciliation was, at the very least,
attempted. On this basis, it seems to me that what is im portant is a referral to
conciliation, rather than conciliation actually materialising. I accept that conciliation
can be crucial in resolving dismissal disputes, such as in the case of Intervalve, but I
have already mentioned that Intervalve is distinguishable from the present case. The
matter before us makes me question whether conciliation is, in fact, a jurisdictional
requirement having substantive value in every dismissal dispute process. As indicated

requirement having substantive value in every dismissal dispute process. As indicated
above, what gets referred to concil iation in terms of section 189A(8)(a) is not a
dismissal dispute but a pre-dismissal interest dispute.

42 National Union of Metalworkers of South Africa v Driveline Technologies (Pty) Ltd [1999] ZALC 157; [2000]
1 BLLR 20 (LAC) at paras 8 and 12.

TSHIQI J
20

A comparison between section 189A(7) and section 189A(8) of the L abour Relations
Act
[46] Section 189A(7) sets out a different process to that envisaged in
section 189A(8), where a facilitator has not been appointed. Section 189A(8)
specifically provides for the dispute to first be referred to conciliation before the
employees may (a) go on strike or (b) refer a dispute to the Labour Court.

[47] In the context of strike action for example, section 189A(8)(b) allows employees
to strike only “once the periods mentioned in section 64(1)(a) have elapsed”.43 There
are two periods of 30 days envisaged in section s 189A(8) and 64(1)(a). First, in terms
of section 189A(8)(a), there is a 30 -day period for consultation following the
employer’s notice in terms of section 189(3) inviting affected employees to consult.
Second, and upon the expiry of the first 30 -day period, in terms of section 189A(8)(b)
read with section 64(1)(a), a further 30 days must be allowed for conciliation following
a referral of the retrenchment dispute to the CCMA or a Council. Only then may the
employer issue notices of dismissal, and only then may the dismissed employees have
recourse to strike ac tion or a referral to the Labour Court over the dismissals. The
cumulative 60 days for consultation and conciliation match the 60 days contemplated
in section 189A(7).


43 Section 64(1)(a) of the LRA reads:
“(1) Every employee has the right to strike and every employer has recourse to lock out
if—
(a) the issue in dispute has been referred to a council or to the [CCMA] as required
by this Act, and—
(i) a certificate stating that the dispute remains unresolved has been
issued; or
(ii) a period of 30 days, or any extension of that period agreed to between
the parties to the dispute, has elapsed since the referral was received
by the council or the [CCMA].”

TSHIQI J
21
[48] It seems to me that in this context, facilitation is the determining factor as to
whether conciliation is required before strike action in the context of section 189A(7).44
That is the fundamental difference between section 189A(7) and section 189A(8) – this
is why conciliation is not a pre -requisite under section 189A(7) and thus, conciliation
is not required for strike action in the context of section 189A(7)(b)(i). In the former
instance, facilitated consultation over proposed retrenchments is required. In the latter
instance, non -facilitated consult ation followed by conciliation over proposed
retrenchments is required. In neither instance is conciliation over subsequent dismissals
required.

[49] During the hearing, the applicants submitted that the interpretation of
section 189A(7)(b)(ii) should avoid c reating an unfair differentiation between
employees who choose to strike in terms of section 189A(7)(b)(i) and those who choose
adjudication under section 189A(7)(b)(ii). They argue that their interpretation of
section 189A(7)(b)(ii) guards against this unfair differentiation, in that it does not
require any party to refer a matter to conciliation. I agree with this view , given that
section 189A(10)(a) precludes a consulting party who has elected to refer the dispute to
the Labour Court from serving a no tice of a strike later. 45 The same is said for a
consulting party who elects to strike – they too are precluded from referring a dispute
to the Labour Court. The dismissed employees are given two mutually exclusive
options, and the right to exercise either of them is immediately available once the time
periods contemplated in section 189A(7) and (8) have expired.


44 Or before a referral to the Labour Court.
45 Section 189A(10)(a) of the LRA reads:
“A consulting party may not—
(i) give notice of a strike in terms of this section in respect of a dismissal, if it has referred

a dispute concerning whether there is a fair reason for that dismissal to the
Labour Court;
(ii) refer a dispute about whether there is a fair reason for a dismissal to the Labour Court,
if it has given notice of a strike in terms of this section in respect of that dismissal .”

TSHIQI J
22
[50] In an attempt to justify why conciliation over a dismissal dispute would not be
required if employees choose to strike under section 189A(7)(b)(i), the respondent
argues that the right to strike is retaliatory in nature and to require conciliation would
emasculate this right and defeat its purpose. This is said to be so because a referral to
conciliation would take 30 days . By that time, the notice period in terms of
section 37(1) of the Basic Conditions of Employment Act,46 which the employees were
placed under, would have run out and the decision to retrench would have taken effect,
consequently disentitling them from striking afterwards. Ye s, strike action is used by
employees as a means of putting pressure on employers during negotiations pertaining
to labour disputes. I accept that requiring conciliation before embarking on a strike
would result in the employees exploring conciliation wit h the retrenchment notice
period “looming over their heads” and employees would ultimately be overtaken by the
retrenchment event, but I am not persuaded by the respondent’s submission that such a
strike is retaliatory.

[51] In any event, this submission does not assist the respondent in justifying why
conciliation, in the context of section 189A(7)(b)(ii) , is mandatory. As I have
previously stated, the Legislature specifically mentioned “the Labour Court” and
cross-referenced section 191(11), not section 191( 5), when drafting
section 189A(7)(b)(ii). I t therefore did away with the conciliation requirement in the
context of section 189A(7)(b)(ii). And even in section 189A(8), there is no requirement
of conciliation in respect of a dismissal dispute ; conciliati on in the context of
section 189A(8) is conciliation over proposed retrenchments, at a time before notices

46 75 of 1997. This section reads:
“Subject to section 38, a contract of employment terminable at the instanc e of a party to the

“Subject to section 38, a contract of employment terminable at the instanc e of a party to the
contract may be terminated only on notice of not less than—
(a) one week, if the employee has been employed for six months or less;
(b) two weeks, if the employee has been employed for more than six months but not more
than one year;
(c) four weeks, if the employee—
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more than
six months.”

TSHIQI J
23
of dismissals have been, or can be, given. The conciliation required by section 189A(8)
is a substitute for the facilitated consultation which section 189A(7) deals with. The
result is that under both subsections a period of 60 days must elapse from the employer’s
section 189(3) notice before the employer may issue dismissal notices and before the
employees may resultantly strike or refer a dismissal dispute to the Labour Court.

[52] Additionally, section 189A(7)(b)(i) is instructive. The section does not refer
back to section 64(1)(a). The implication is that where facilitation has taken place,
employees may immediately give notice in terms of section 64(1)(b) or (d) to strike.
Given the context that a right to strike following facilitation is immediate, it follows
that a right of referral to the Labour Court would likewise be immediate.

What is the purpose of the reference to section 191(11) in section 189A(7)(b)(ii) of the
Labour Relations Act?
[53] The applicants contend that section 191(11) does not contain any substantive
requirements but has the sole purpose of providing the time within which a dispute must
be referred for adjudication to the Labour Court. The respondent disagrees with this
interpretation and refers this Court to t he LAC’s findings in SAA Technical,47 which
held against the use of section 191(11) as a mere time limit provision. Accordingly, the
respondent submits that conciliation is a universal norm, as reflected in the
jurisprudence, and if the Legislature had intended to deviate from this norm in
section 189A(7)(b)(ii), it would have done so unambiguously and expressly.

[54] During the hearing, the respondent accepted that section 189A(7)(b)(ii) is a
jurisdiction-assigning provision: in plain terms, it gives dismissed employees a right (as
an alternative to striking) to refer a dismissal dispute to the Labour Court. To that end,
therefore, it would create a second “jurisdictional hurdle” if this Court were to interpret

therefore, it would create a second “jurisdictional hurdle” if this Court were to interpret
the reference to section 191(11) as requiring an aggrieved employee to go through a
fresh jurisdiction-assigning process. One may then ask why, in section 189A(7)(b)(ii),

47 SAA Technical above n 13 at para 21.

TSHIQI J
24
or for that matter in section 189A(8)(b)(ii)(bb), the Legislature said that the dismissed
employees could refer a dismissal dispute to the Labour Court when the Legislature
supposedly meant that they could only refer a dismissal dispute for conciliation to the
CCMA or a Council. If that is what the Legislature meant, the supposed right of referral
to the Labour Court in section 189A(7) and section 189A(8) would add nothing to the
rights which the dismissed employees would in any event have. Dismissed employees
who consider their d ismissals to be substantively unfair would in any event have the
right to refer a dismissal dispute for conciliation and then to the Labour Court. The
respondent’s interpretation thus renders the right of referral to the Labour Court in
section 189A(7) and section 189A(8) redundant, and there is of course a presumption
against this.

[55] On that basis , the reference to section 191(11) must be interpreted as a time
requirement rather than a requirement of substance in order to establish jurisdiction that
had already been assigned. In conclusion, I hold that the reference to section 191(11)
in sections 189A(7) and section 189A (8) does not have the effect of conferring
jurisdiction. In the context of an ordinary dismissal, the jurisdiction-assigning provision
is section 191(5)(b), not section 191(11). Likewise, in the context of retrenchment
dismissals falling within the ambit of section 189A, the jurisdiction-assigning provision
is section 189A(7)(b)(ii) or (8)(b)(ii)(bb) , as the case may be. In both instances,
section 191(11) serves only as a time clause and cannot impose the conciliation
requirements found under section 191(5)(b).

[56] It is clear to me that the Legislature deliberate ly referred to section 191(11),
rather than section 191(1)(a) and (5), with the intention to exclude conciliation over
retrenchment dismissals where facilitation or consultation on conciliation has taken

retrenchment dismissals where facilitation or consultation on conciliation has taken
place in terms of section 189A(7) or section 189A (8), as the case may be. Had the
Legislature intended otherwise, it would have explicitly stated so in section 189A(7) by
referencing the provisions governing conciliation as a prerequisite for referr als to the
Labour Court, namely section 191(1) and (5).

TSHIQI J
25
[57] I therefore agree with the Labour Court’s finding in Bell that section 191(11), in
the context of section 189A(7)(b)(ii), must be understood as simply providing a time
period for a dispute to be referred to the Labour Court.

How should the 90-day period be computed?
[58] I agree with t he applicants ’ submission that the proper interpretation of
section 189A(7)(b)(ii) is to apply the wording of section 191(11) mutatis mutandis
(with the necessary adjustments), having regard to the specific context of a referral to
the Labour Court pursuant to section 189A(7)(b)(ii), thereby providing a sensible,
businesslike result. Approached in this way, the 90 -day period runs from the date the
registered trade union or employees receive the dismissal notices , following the
facilitation process and the expiry of 60 days from the date of the original section 189(3)
notice. The 90-day period is similarly computed in the case of section 189A(8). It is
upon receipt of the notices of dismissal that the employees obtain their unconditional
but mutually exclusive right s to strike or to refer a dismissal dispute to the
Labour Court.

[59] Since I have interpreted section 191(11) as a timing provision, the principle in
Endumeni, that words in a statute must be given their ordinary grammatical meaning
unless they lead to absurdity , must apply. The Labour Court in Latiff48 held that the
90-day period is regulated by the provisions of section 4 of the Interpretation Act, 49
which provides that—

“[w]hen any particular number of days is prescribed for the doing of any act, or for any
other purpose, the same shall be reckoned exclusively of the first day and inclusively
of the last day, unless the last day happens to fall on a Sunday or on any public holiday”.


48 Latiff v Donro (Pty) Ltd [2004] ZALC 56; [2004] 11 BLLR 1151 (LC); (2004) 25 ILJ 2219 (LC) at para 8, with

reference to the Supreme Court of Appeal decision in Nedcor Bank Ltd v The Master [2002] ZASCA 54; 2002
(1) SA 390 (SCA); [2002] 2 All SA 281 (A).
49 33 of 1957.

TSHIQI J
26
[60] I have not found anything in section 191(11)(a) which provides a departure from
the calculation of the 90-day period in this fashion.

Second judgment
[61] I have read the carefully reasoned judgment of my sister, Theron J (second
judgment), which concludes that, on a proper interpretation of section 189A(7)(b)(ii), a
dispute must first be referred to conciliation before being referred to the Labour Court.
It finds that “section 189A(7)(b)(ii) incorporates section 191(11), which incorporates
section 191(5), which, by necessity, incorporates a referral in terms of section 191(1)”.50
I disagree . The second judgment’s interpretation of section 189A(7)(b)(ii) leads to
unbusinesslike results – something which the Supreme Court of Appeal in Endumeni
cautions against. 51 It also undermines the architecture of our labour law legislative
framework and the purpose of the amendments in the context of mass retrenchments.

[62] I have already accepted that conciliation can be crucial in resolving dismissal
disputes. However, the importance of pre -adjudication conciliation, advanced by the
second judgment, does not consider that it is the “referral” to conciliation and not that
conciliation itself must have taken place that is a prescribed pre-requisite under the
LRA. It, therefore, does not disabuse me of the views expressed in paragraphs [44] and
[45] of my judgment, which are supported by the LAC’s decision in Driveline.

[63] I have acknowledged that, in the context of an ordinary dismissal dispute, the
jurisdiction-assigning provision would be section 191(5)(b). This was also conceded
by the respondent during the hearing. It seems, to me at least, that the second judgment
does not consider the context within which retrenchment dismissals under section 189A
operate. It appears to ignore (and fails to advance reasons against), the jurisdiction -
assigning provisions in section 189A(7)(b)(ii) and section 189A(8)(b)(ii)(bb); and does

assigning provisions in section 189A(7)(b)(ii) and section 189A(8)(b)(ii)(bb); and does

50 See the second judgment at [76].
51 Endumeni above n 31 at para 18.

TSHIQI J
27
not posit a reason why, in both instances, section 191(11) cannot function as a time
clause.

[64] The second judgment treats employees who choose to strike under
section 189A(7)(b)(i) differently from those who choose adjudication under
section 189A(7)(b)(ii) by finding that the latter employees’ circumstance s require
conciliation. I remain unpersuaded by that finding , as there is no such explicit
requirement in the case of section 189A(7)(b)(i). To include such a requirement in
section 189A(7)(b)(ii) would, with respect, deviate from Endumeni’s finding that
“[j]udges must be alert to, and guard against, the temptation to substitute what they
regard as reasonable, sensible or businesslike for the words actually used”. 52

Relief
[65] For the reasons set out above, I find that the decision of the LAC must be set
aside and the order of the Labour Court reinstated. The matter is remitted to the
Labour Court to decide the merits of the applicants’ case.

Costs
[66] The general rule is that costs do not follow the result in labour matters. This
Court has previously held that—

“where . . . democracy entrenches labour rights, thereby appreciating the unique and
significant nature of matters involving a person’s livelihood, and creates fora in which
labour disputes are to be ventilated and peacefully resolved, it is of utmost importance
that the right of access to those fora is safeguarded. It is precisely this recognition that
is embedded in the rule that costs in labour disputes do not follow the result.”53


52 Id.
53 Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd [2021] ZACC
26; [2021] 12 BLLR 1173 (CC); (2021) 42 ILJ 2371 (CC) at para 1. See also Zungu v Premier of the Province of
KwaZulu-Natal [2018] ZACC 1; 2018 (6) BCLR 686 (CC); 2018 (39) ILJ 523 (CC) at para 24.

TSHIQI J / THERON J
28
[67] The applicants and respondent do not seek costs against each other. Considering
that the parties have approached this Court with the bona fide (good faith) intention to
vindicate labour rights, there is no order as to costs.

Order
[68] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Labour Appeal Court is set aside.
4. The order of the Labour Court is reinstated, and the matter is remitted to
the Labour Court to decide the merits of the applicants’ case.
5. There is no order as to costs.



THERON J (Maya CJ, Majiedt J and Musi AJ concurring):


Introduction
[69] I have read the judgment of my Colleague, Tshiqi J (first judgment). I align
myself with the factual background as set out by the first judgment. I further agree that
this Court’s jurisdiction is engaged and that leave to appeal should be granted, for the
reasons set out by the first judgment.

Merits
[70] This matter is concerned with a crisp issue: whether the correct interpretation of
section 189A(7)(b)(ii) requires a dispute to first be referred to conciliation, before being
referred to the Labour Court. It is trite that in statutory interpretation, “[t]he ‘inevitable
point of departure is the language of the provision itself’, read in context and having
regard to the purpose of the provision and the background to the preparation and

THERON J
29
production of the document”. 54 Statutory interpretation is a unitary exercise, with
“neither [the context nor the language] predominating over the other”. 55

[71] At the hearing of this matter, both parties acknowledged the possible textual
ambiguity of section 189A(7)(b)(ii). This case is not one where the text itself is “ clear
and admits of little if any ambiguity”,56 nor is it a case “where the context makes it plain
that adhering to the meaning suggested by apparently plain language would lead to
glaring absurdity”.57 This case is one that the Supreme Court of Appeal described in
Endumeni as follows:

“[I]n most cases the court is faced with two or more possible meanings that are to a
greater or lesser degree available on the language used. Here it is usually said that the
language is ambiguous, although the only ambiguity lies in selecting th e proper
meaning (on which views may legitimately differ). In resolving the problem, the
apparent purpose of the provision and the context in which it occurs will be important
guides to the correct interpretation. An interpretation will not be given that leads to
impractical, unbusinesslike or oppressive consequences or that will stultify the broader
operation of the legislation or contract under consideration.”58 (Footnote omitted.)

[72] In this judgment, I consider the text, context and purpose of
section 189A(7)(b)(ii). I conclude that the interpretation of the Labour Appeal Court,
namely that section 189A(7)(b)(ii) requires a referral for conciliation prior to a referral
of an unfair dismissal dispute to the Labour Court, is preferable to the one posited by
the applicants, namely that such prior referral for conciliation is not required.


54 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC) ;
2021 (8) BCLR 807 (CC) (Auckland Park Theological Seminary ) at para 64, quoting Endumeni above n 31 at

para 18 (footnote omitted).
55 Auckland Park Theological Seminary id at para 65, quoting Endumeni id at para 19.
56 Endumeni id at para 25.
57 Id.
58 Id at para 26.

THERON J
30
Text
[73] Section 189A(7) reads:

“(7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have
elapsed from the date on which notice was given in terms of section 189(3)—
(a) the employer may give notice to terminate the contracts of
employment in accordance with section 37(1) of the Basic Conditions
of Employment Act; and
(b) a registered trade union or the employees who have received notice of
termination may either—
(i) give notice of a strike in terms of section 64(1)(b) or (d); or
(ii) refer a dispute concerning whether there is a fair reason for
the dismissal to the Labour Court in terms of section 191(11).”
(Emphasis added.)

[74] On my reading, the plain meaning of section 189A(7)(b)(ii) contemplates not
only a referral to the Labour Court, but also that such referral must occur pursuant to
another provision, namely “in terms of section 191(11)”.

[75] Section 191(11) provides:

“(a) The referral, in terms of subsection (5)(b), of a dispute to the Labour Court for
adjudication, must be made within 90 days after the council or (as the case may
be) the commissioner has certified that the dispute remains unresolved.
(b) However, the Labour Court may condone non -observance of that timeframe
on good cause shown.” (Emphasis added.)

[76] Section 191(11) similarly references section 191(5)( b),59 which contemplates
instances where, following a referral in terms of section 191(1)(a), an employee can

59 Section 191(5) of the LRA reads:

THERON J
31
“bypass” arbitration proceedings and take a dispute directly to the Labour Court. In
summary: section 189A(7)(b)(ii) incorporates section 191(11), which incorporates
section 191(5), which, by necessity, incorporates a referral in terms of section 191(1).

[77] When these sections are read together, there is no strained language. The
section 189A(7) process is simply brought in line with the existing referral process.
This accords with the purpose of incorporating a section by reference, as
section 189A(7)(b)(ii) does with section 191(11). Where a procedure prescribed by one
set of provisions is intricate and lengthy, and another provision is intended to
incorporate that procedure without repeating the entirety of it, it is convenient to do so
by using words suc h as “in terms of section X”, where “section X” by necessity
implicates other provisions as well. This is not an uncommon legislative mechanism 60
and is exactly what section 189A(7)(b)(ii) does. Instead of having to repeat the entirety
of the process set out in section 191, culminating in section 191(11), it simply makes
reference to the final section, in order to conveniently incorporate the process as a
whole.

[78] In my view, this is the most sensible interpretation of the words “in terms of
section 191(11)”. It reads as a reference, not to any specified portion of section 191(11),

“If a council or a commissioner has certified that the dispute remains unresolved, or if 30 days
or any further period as agreed between the parties have expired since the council or the
[CCMA] received the referral and the dispute remains unresolved—
. . .
(b) the employee may refer the dispute to the Labour Court for adjudication if the
employee has alleged that the reason for dismissal is—
(i) automatically unfair;
(ii) based on the employer’s operational requirements;
(iii) the employee’s participation in a strike that does not comply with the

(iii) the employee’s participation in a strike that does not comply with the
provisions of Chapter IV; or
(iv) because the employee refused to join, was refused membership of or was
expelled from a trade union party to a closed shop agreement.”
60 Although one should be careful not to equate different sections with each other directly, there are a few other
examples of this mechanism in the LRA itself. For example, section 64(2) of the LRA requires that “an advisory
award must have been made in terms of section 135(3)(c)” before a strike notice is issued. Section 135(3)(c)
necessarily implicates the preceding section 135(1) and (2). A further example is section 88(1) of the LRA, which
refers to “a matter [that] has been referred to arbitration in terms of section 86(4)(a) or (b)”. Section 86(4)(a) and
(b) come at the end of the consultation process prescribed by section 86(1).

THERON J
32
but to section 191(11) as a whole, including the further cross -reference to
section 191(5).

[79] The applicants contend that the reference to section 191(11) in
section 189A(7)(b)(ii) incorporates only the 90 -day period referred to in
section 191(11). This 90 -day period, they argue, must run from the date of the notice
of termination contemplated in section 189A(7)(a). On their argument, this
interpretation gives meaning to the word s “to the Labour Court”, for otherwise the
referral would not be a referral “to the Labour Court” but instead a referral “to the
[CCMA] or a bargaining council”.

[80] On a pure textual basis, there are two reasons why the applicants’ interpretation
is unsound. First, the applicants contend that the respondent’s interpretation fails to
give effect to the words “Labour Court” in section 189A(7)(b)(ii). But the respondent’s
interpretation does not do away with the Labour Court as the eventual arbiter of the
unfair dismissal dispute; it simply stipulates that the route to get to the Labour Court is
the one set out in section 191(11) (and thus in section 191(1) and (5)).

[81] This is also why the argument that section 189A(7)(b)(ii) is a
jurisdiction-assigning provision does not advance the applicant’s interpretation. I agree
with the first judgment that section 189A(7)(b)(ii) assigns jurisdiction to the
Labour Court over disputes referred in terms of that section. But, crucially, it only
assigns jur isdiction to the Labour Court over a dispute referred to it “in terms of
section 191(11)”. That argument thus takes one back to the disputed meaning of “in
terms of section 191(11)” and does not advance either the applicants’ or the
respondent’s interpretations.

[82] The second reason why the applicants’ interpretation is not supported by the text,
is that it in effect requires the reader to both ignore large portions of section 191(11), as
well as read in new words. The reader would have to ignore the refere nce to

well as read in new words. The reader would have to ignore the refere nce to
section 191(5)(b), as well as the reference to the 90 -day period running from the date

THERON J
33
that “the council or (as the case may be) the commissioner has certified that the dispute
remains unresolved ”. This is because, on the applicants’ interpretation , there is no
referral to conciliation, and the dispute will thus never be certified as unresolved by a
commissioner or bargaining council. Then, a new event from which the 90-day period
has to run needs to be read into the section. The applicants sugges t the most logical
date is the date of the notice of termination.

[83] The respondent provides a useful illustration of how section 191(11)(a) would
have to be read to truly give effect to the applicants’ interpretation:

“The referral , in terms of subsection (5)(b), of a dispute to the Labour Court for
adjudication, must be made within 90 days after the council or (as the case may be) the
commissioner has certified that the dispute remains unresolved the employee or trade
union has been served with the notice of termination.”61

[84] This would be a radical departure from the actual text and contrary to the rule of
interpretation that each word used in a legal instrument should be given meaning.62 This
is not a logical interpretation.

[85] There is indeed a degree of awk wardness in referring to what is essentially the
“concluding” provision in the conciliation process, and it might have read better if
section 189A(7)(b)(ii) had referred to section 191(1) or (5). However, the applicants’
interpretation suffers from a simi lar, and in my view more fatal, defect. Had the
Legislature intended the meaning ascribed to the provision by the applicants, it could
have avoided ambiguity by replacing “in terms of section 191(11)” with “within 90 days

61 The deleted portions are represented by strikethrough. The words to be read in are underlined.
62 The rule is often expressed through the maxim ut res magis valeat quam pereat (rather let it survive than perish).

See in this regard AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional
Services; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC [2021] ZACC 3; 2021 (3)
SA 246 (CC); 2021 (4) BCLR 349 (CC) at para 77 and Minister of Water and Sanitation v Lötter N.O.; Minister
of Water and Sanitation v Wi ld; Minister of Water and Sanitation v South African Association for Water User
Associations [2023] ZACC 9; 2023 (4) SA 434 (CC); 2023 (6) BCLR 763 (CC) at para 34.

THERON J
34
after the notice of termination”. This would not only have removed the ambiguity, but
it would not have required the piecemeal reading of section 191(11) explained above.

[86] For these reasons, the text of section 189A(7)(b)(ii) clearly favours the
interpretation posited by the respondent and endorsed by the Labour Appeal Court.

Context
[87] Next, it is necessary to consider the context of the section in which
section 189A(7)(b)(ii) is located which, as held in Endumeni, is an “important [guide]
to the correct interpretation”.63

[88] The most immediate context is section 189A(7)(b)(i), which provides employees
who have received a notice of termination with the right to give notice of a strike in
terms of section 64(1)(b) or (d). These paragraphs provide employees with the right to
strike following a notice period given to an employer, without requiring them to first
refer a matter for conciliation. Thus, in terms of section 189A(7)(b)(i) employees can
strike without first having to refer the dispute to conciliation. On this interpretation, I
am in agreement with the first judgment.

[89] The applicants argue that, if section 189A(7)(b)(i) does not require a referral
before strike action is embarked upon, there is no rational reason to read
section 189A(7)(b)(ii) to require such a referral prior to a furth er referral to the
Labour Court. The respondent submits that the strike envisioned in section
189A(7)(b)(ii) is a retaliatory strike, and it is rational not to encumber a retaliatory strike
with a prerequisite conciliation process.

[90] The distinction between section 189A(7)(b)(i) and (ii) drawn by the respondent
is rational. Employees retrenched in terms of section 189A(7) are essentially serving
out their notice period. Therefore, if they were required to first refer the matter to

63 Endumeni above n 31 at para 26.

THERON J
35
conciliation, their righ t to strike would be kneecapped. As far as I have been able to
determine, section 189A(7)(b)(i) provides the only circumstance where employees are
granted the right to strike on the basis of proposed or affected dismissals. This unique
right to strike ha s been identified as the primary innovation of the introduction of
section 189A:

“Before section 189A was introduced into the [LRA] in 2002, employees could not
strike over proposed retrenchments. Hence, the precise purpose of s ection 189A was
to provide employees with the right to strike over dismissals based upon operational
requirements provided that the provisions of section 189(1) were satisfied.”64

[91] The applicants, at the hearing of this matter, posited that the
section 189A(7)(b)(i) strike is not one undertaken by employees who have been given
notice of termination, but rather by the remainder of the workforce. This interpretation
is not borne out by the text of section 189A(7)(b), which specifically refers to “a
registered trade u nion or the employees who have received notice of termination ”.65
However, even if the strike were a strike by the general workforce, such a strike would
presumably be aimed at an aspect of the retrenchment dispute, which would lose its
force if the employ ees have served their notice and left the company by the time that
they were given the right to give notice of a strike.

[92] I am satisfied that there is a rational reason to not subject the right to strike in
section 189A(7)(b)(i) to the requirement of a prior referral to conciliation. Do the same
considerations apply for the referral of a dispute to the Labour Court? In my view, they
do not. There is not the same immediate urgency for a dispute to be referred to the
Labour Court. A requirement of a prior referral to conciliation does not render the
remedy of a referral to the Labour Court nugatory, as contended by the applicants. It

remedy of a referral to the Labour Court nugatory, as contended by the applicants. It
merely adds an antecedent step, and one with a particular purpose. Although one of the
purposes of the LRA is the expediti ous resolution of labour disputes, this is not a

64 Continental Tyre SA (Pty) Ltd v National Union of Metalworkers of SA [2008] ZALAC 4; [2008] 9 BLLR 828
(LAC); (2008) 29 ILJ 2561 (LAC) at para 24.
65 Emphasis added.

THERON J
36
warrant to reject conciliation proceedings prior to a referral to the Labour Court. I
discuss the particular importance of conciliation to the scheme of the LRA below.

Purpose
[93] The arguments regarding the p urpose of section 189A(7)(b)(ii) revolve around
the utility of a referral to conciliation where a facilitation process has already taken
place. The applicants essentially argue that such a referral to conciliation would be
unnecessarily repetitive, given the similarities between conciliation and facilitation
processes.

[94] This Court has recognised that the LRA generally places a high premium on
attempted conciliation before other methods of resolution are pursued. 66 In Intervalve,
this Court said that a “[r]eferral for conciliation is indispensable. It is a precondition to
the Labour Court’s jurisdiction over unfair dismissal disputes.” 67 I accept that the
judgment in Intervalve does not provide a conclusive answer on the interpretation of
section 189A(7)(b)(ii). Part of the reasoning of both the majority judgment and the
concurring judgment by Zondo J in Intervalve rests on the conciliation requirements
prescribed by section 191(5). In this case we are attempting to determine whether
section 191(5) comes into play at all, and thus Intervalve cannot provide the complete
answer. However, the importance of attempted pre -adjudication conciliation in the
scheme of the LRA and the history of that principle in South African labour law and
international labour law instruments68 is underscored by the judgment, especially in
Zondo J’s concurrence:69

“Section 191(5) captures a principle of the dispute -resolution dispensation for labour
disputes that has been part of various statutes in South Africa for at least the pas t

66 Intervalve above n 22 at para 34.
67 Id at para 40.
68 Id at paras 115-30.

66 Intervalve above n 22 at para 34.
67 Id at para 40.
68 Id at paras 115-30.
69 It should be noted that a majority of the Court concurred in both Cameron J’s majority judgment and Zondo J’s
concurrence.

THERON J
37
90 years. It is not a new principle. The principle is that, before a labour dispute may
be the subject of an arbitration or adjudication or industrial action, it should first have
been referred to a process of conciliation.”70

[95] That is not to say that the principle of pre-adjudication conciliation allows for no
exception. As recognised in Intervalve, certain exceptions are set out in the LRA.71 For
example, section 64(3) allows for circumstances where strikes are allowed without the
matter having been referred to conciliation. And, while no equivalent provision appears
in the LRA, the now-repealed 1956 Labour Relations Act allowed for an exception that
a dispute could be referred for adjudication by the Industrial Court without a referral to
conciliation, where all parties involved were satisfied that the dispute could not be
settled via conciliation.72 Exceptions, however, cannot govern the general rule. In my
view, where the LRA intends to deviate from the established requirement of a referral
to conciliation, the deviation must be set out in clear terms. Section 189A(7)(b)(ii) does
not provide the required clarity. As I have concluded above, the text points in the
opposite direction.

[96] There is also a qualitative difference between pre -dismissal facilitation (or for
that matter, pre-dismissal conciliation in terms of section 189A(8)) and post -dismissal
conciliation. The former is aimed at “assist[ing] the parties engaged in consultations”.73
Section 189(2) sets out the purpose of such consultation:

“The employer and the other consulting parties must in the consultation envisaged by
subsections (1) and (3) engage in a meaningful joint consensus -seeking process and
attempt to reach consensus on—
(a) appropriate measures—

70 Intervalve above n 22 at para 116.
71 Id at para 128.
72 Section 46(6) of the Labour Relations Act 28 of 1956. See also Intervalve id at para 129.

72 Section 46(6) of the Labour Relations Act 28 of 1956. See also Intervalve id at para 129.
73 Section 189A(3) of the LRA. See Communication Workers Union v Mobile Telephone Networks (Pty) Ltd
(2024) 45 ILJ 1831 (LC) at para 36, where the Labour Court held that “[d]uring the facilitation process, there is
no dismissal dispute between the parties. The focus [during the facilitation process] is on the provisions of
section 189(3) of the LRA.”

THERON J
38
(i) to avoid the dismissals;
(ii) to minimise the number of dismissals;
(iii) to change the timing of the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the employees to be dismissed; and
(c) the severance pay for dismissed employees.”

[97] At this stage, dismissals have been contemplated, but have not yet been effected.
It is possible (and indeed explicitly contemplated in section 189(2)(a)(i) and (ii)) that
some or even all of the dismissals may be avoided by measures devised by the joint
consensus-seeking engagement.

[98] Post-dismissal conciliation, on the other hand, by definition follows certain
dismissals having been effected. A dismissal dispute in terms of section 189A(7)(b)(ii)
is limited to a dispute concerning whether there is a fair reason for the dismissal. That
is a qualitatively different dispute than any which arose prior to dismissal.

[99] Facts that will form the basis of pre -dismissal facilitation and post -dismissal
conciliation will often overlap and may at times be simila r. However, this is not
necessarily the case. For example, it is possible that following a facilitation process,
parties may reach consensus on measures that avoid some of the contemplated
dismissals. The employer might dismiss only a portion of the emp loyees that it
originally contemplated dismissing. The dismissed employees might then contend that
their dismissals occurred in the absence of a fair reason. Under such circumstances, the
post-dismissal dispute might differ in material respects from the pre-dismissal
facilitation.

[100] Furthermore, the positions of the parties differ between pre -dismissal
consultation and post -dismissal disputes. As has been stated by the Labour Court, “a
consulting party [for example, a registered trade union] in a section 189A consultation

THERON J
39
process . . . acts in a capacity not dissimilar to a collective bargaining agent”.74 During
the pre -dismissal consultation process, the employees, especially where they are
represented by a trade union,75 wield some coercive bargaining power.

[101] This Court in AMCU recognised that even where a pre-retrenchment consultation
process complies with the requirements of the LRA, it is not determinative of whether
the dismissals that follow will be held to be substantively fair. 76 It highlighted the
example, discussed in the Labour Court’s judgment of Sikhosana,77 where the collective
representative that is entitled to consult in terms of section 189(1) does not represent
the interests of all employees affected by the retrenchment.78 The post-dismissal dispute
(and thus any post -dismissal conciliation) is aimed at the substantive fairness of the
dismissals.

[102] Again, this is not to say that there is no overlap between the matters that will
form the subject of the pre -dismissal facilitation and post -dismissal conciliation,
respectively. But the processes are aimed at different targets: the first at assisting parties
during the consensus-seeking consultation, and the second at resolving a dispute arising
from allegedly unfair dismissals.

[103] This is also why it does not assist the applicants to compare section 189A(7) and
section 189A(8). While the Labour Appeal Court’s interpretation might, by parity of
reasoning, mean that employees engaged in a section 189A(8) process would have to
undertake two referrals to conciliation, these two referrals are not aimed at the same
dispute. As the first judgment also accepts, the section 189A(8)(a) referral is based on

74 Association of Mineworkers & Construction Union v Sibanye Gold Ltd t/a Sibanye Stillwater (2019) 40 ILJ
1597 (LC) at para 24.
75 AMCU v Royal Bafokeng Platinum Ltd [2020] ZACC 1; 2020 (3) SA 1 (CC); 2020 (4) BCLR 373 (CC); (2020)

41 ILJ 555 (CC) (AMCU) at para 122.
76 Id at para 127.
77 Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC) at 656I-657A.
78 AMCU above n 75 at para 127.

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40
a pre -dismissal interest dispute which, for the same reas ons as a pre -dismissal
facilitation dispute set out above, qualitatively differs in aim from a post -dismissal
conciliation.79

[104] I am accordingly satisfied that reading section 189A(7)(b)(ii) to require a referral
to conciliation prior to Labour Court adjudication does not amount to redundancy, and
that it in fact accords with the general aims of conciliation prior to adjudication –
avoiding further conflict and litigation costs, and serving the broader public “by the
productive outputs of peaceable employment relationships”.80

[105] I am also not convinced by the applicants’ argument that requiring conciliation
unduly delays the finalisation of the dispute. The conciliation process contemplates a
referral to the Labour Court becoming available at most 60 days following the dismissal
(30 days for the matter to be referred to conciliation 81 plus 30 days for the matter to be
certified as unresolved82). This argument also presupposes that the conciliation will be
unsuccessful, whereas, if the dispute is successfully conc iliated, then finalisation is of
course not delayed, but is achieved much sooner. This also puts paid to the argument
by the first judgment that my interpretation “leads to unbusinesslike results”. 83

[106] Thus, I am satisfied that the purpose of section 189A(7 )(b)(ii) aligns with a
requirement that a referral to conciliation is made prior to a referral of a dispute to the
Labour Court.

Conclusion
[107] In conclusion, and on a proper consideration of the text of section 189A(7)(b)(ii)
“read in context and having rega rd to [its] purpose”, the Labour Appeal Court’s

79 See the first judgment at [25].
80 Intervalve above n 22 at para 46.
81 In terms of section 191(1)(b)(i) of the LRA.
82 In terms of section 191(5) of the LRA.
83 See the first judgment at [61].

THERON J
41
interpretation should be endorsed. Had I commanded the majority , I would have
dismissed the appeal.

For the Applicants:



For the Respondent:

M Pillemer SC and T Seery instructed
by Harkoo, Brijlal and Reddy
Incorporated

A Myburgh SC and J Davis instructed
by Tabacks Attorneys Incorporated