National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd and Others (CCT72/14) [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC) (12 December 2014)

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[2014] ZACC 35
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National Union of Metal Workers of South Africa v Intervalve (Pty) Ltd and Others (CCT72/14) [2014] ZACC 35; 2015 (2) BCLR 182 (CC); [2015] 3 BLLR 205 (CC); (2015) 36 ILJ 363 (CC) (12 December 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 72/14
In
the matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH
AFRICA
.................................................................................................................
Applicant
and
INTERVALVE
(PTY)
LTD
............................................................................................
First
Respondent
BHR
PIPING SYSTEMS (PTY)
LTD
......................................................................
Second
Respondent
STEINMÜLLER
AFRICA (PTY)
LTD
.......................................................................
Third
Respondent
STRATEGIC
HUMAN
RESOURCES
......................................................................
Fourth
Respondent
TQA
TRADING ENTERPRISES (PTY)
LTD
...........................................................
Fifth Respondent
Neutral
citation:
National Union of
Metalworkers of South Africa v Intervalve (Pty) Ltd and Others
[2014]
ZACC 35
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J,
Van der Westhuizen J
and Zondo J
Judgments:
Cameron J (majority): [1] to [74]
Zondo
J (concurring): [75] to [141]
Nkabinde
J (dissenting): [142] to [190]
Froneman
J (dissenting): [191] to [197]
Heard
on:
4 September 2014
Decided
on:
12 December 2014
Summary:
Labour Court Rules — rule 22 —
application for joinder of employer in unfair dismissal dispute —
joinder refused
Labour
Relations Act 66 of 1995
—
section 191
— conciliation a
precondition for adjudication by Labour Court — effect of
failure to cite all employers in referral
to conciliation — no
substantial compliance unless each employer is cited
Waiver
— estoppel — effect of employers handling the dispute
jointly — grounds for neither waiver nor estoppel
established
ORDER
On
appeal from the Labour Appeal Court (hearing an appeal from the
Labour Court):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
CAMERON
J (Mogoeng CJ, Moseneke DCJ, Khampepe J, Leeuw AJ and Zondo J
concurring):
[1]
In
this application for leave to appeal, the applicant union, the
National Union of Metalworkers of South Africa (NUMSA), seeks
to join
two employers, the first and second respondents, Intervalve (Pty) Ltd
(Intervalve) and BHR Piping Systems (Pty) Ltd (BHR),
as parties to
unfair dismissal proceedings pending in the Labour Court between
NUMSA and the third respondent, Steinmüller
Africa (Pty) Ltd
(Steinmüller).
[1]
Steinmüller, Intervalve and BHR are associated companies.
They have interlinked shareholders and directors.
The dismissed
employees, some 204, were each employed by one or other of them.
NUMSA referred the dismissal first to conciliation
and then to the
Labour Court, but cited only Steinmüller.  Its later
attempt to join the other two to the pending proceedings
succeeded in
the Labour Court,
[2]
but failed
in the Labour Appeal Court.
[3]
That is the judgment NUMSA now seeks to overturn.  Its
attempt to do so raises questions about how process must be initiated

in the Labour Court and what the law can do to penetrate the
opacities of form.  But, most importantly, the question is who

must take responsibility for the plight of the dismissed employees.
For their claim that they were unfairly dismissed lies
at the
heart of the matter.
Background
[2]
Steinmüller,
Intervalve and BHR are engineering companies that manufacture
different components for power-generating plants.
[4]
They operate, together with a number of other, unconnected companies,
from an industrial site in Pretoria West controlled
by Arcelormittal
SA Ltd, a steel-manufacturing entity.  This was where an
unprotected strike involving employees of all three
companies took
place.  As a result, 204 employees were dismissed on or about 14
April 2010.
[3]
The
three companies are closely connected.  They each have common
shareholders and directors.  All three are subsidiaries
of
Bilfinger Berger Power Holdings (Pty) Ltd (Bilfinger).
[5]
They share the same payroll administration, purchasing of materials,
quality control – which is externally serviced
– and heat
treatment.  Signally for the arguments in this case, they also
share human resources (HR) services.
These shared services
maintain a single employee record system for all three employers.
In the manufacturing process, certain
supervisors perform management
functions with no distinction as to which employees are employed by
which entity.
[4]
Some
documents in the record reflect these interconnections by referring
to the companies collectively as the “Steinmüller
group of
companies”.
[6]
NUMSA
alleges that several employees were transferred between the three
companies at various times, without one contract
being terminated and
a new one being signed.
[5]
The
strike occurred at the shared Pretoria premises.  From the
employers’ side, it was handled by the shared HR services,

which communicated with the employees through correspondence signed
by Mr Abert simply as “General Manager”.
[7]
The letterhead bore the names of Steinmüller, Intervalve and
BHR, as well as of KOG Fabricators (Pty) Ltd t/a Bellows
Africa
(KOG).  KOG is not party to these proceedings.  The
dismissal letters issued to the employees were identical.
They
were signed by Mr von Neuberg as “Managing Director”.
He is in fact the Chief Executive Officer of the holding
company,
Bilfinger.  The dismissal letters again bear the logos of
Steinmüller, Intervalve and KOG.  A tag line
at the foot
declares: “One Team – One Target”.
[6]
The
Labour Relations Act
[8]
(LRA)
provides that an aggrieved employee may refer a disputed dismissal to
the bargaining council having jurisdiction within 30 days.
[9]
On 20 April 2010, within the 30-day period, NUMSA referred the unfair
dismissal dispute on behalf of the employees to the
Metal and
Engineering Industries Bargaining Council (Bargaining Council).
The referral cited only one employer party.
That was
Steinmüller.
[7]
The conciliation meeting was held on 19 May
2010.  Steinmüller was represented by its HR manager, Mr
Janse van Rensburg,
and an attorney, Mr Bakker.  The same
attorney currently represents Intervalve and BHR in opposing their
joinder.  At
the meeting, Steinmüller’s
representatives pointed out to NUMSA that many of the dismissed
employees listed in the referral
were not its employees.
[8]
NUMSA notes that Steinmüller did not,
at that time, provide a list indicating which employees were employed
by which entity.
It complains that to determine this it had to
undertake a long process of verification, contacting each employee
and comparing
the information elicited with the documentary records
Steinmüller’s attorneys later furnished.  NUMSA has
not yet
completed this process, but suggests the Labour Court should
hear evidence to determine each employee’s employer.
[9]
Two
months passed.  NUMSA decided to refer the dispute to the
Bargaining Council a second time.  It did so on 22 July
2010.
It was now more than three months after the disputed dismissal –
and well outside the LRA’
s 30
-day cut-off for referrals.
The second referral was more encompassing.  It cited the
employer party to the dispute as
Steinmüller, alternatively
Intervalve, alternatively BHR, alternatively KOG.  NUMSA applied
for condonation for the lateness.
[10]
[10]
On 15 August 2010, the Bargaining Council
refused condonation.  We do not know why.  NUMSA did not
place its reasons before
us.  Whatever they were, NUMSA made no
move to challenge them by way of review.  Again, we do not know
why.  Instead,
on 17 August 2010, it filed a statement of claim
in the Labour Court in respect of the first referral – that
involving Steinmüller
alone.  The relief sought was solely
against Steinmüller.
[11]
More
than seven months passed.  Then, on 23 March 2011, NUMSA brought
an application in the Labour Court to join Intervalve
and BHR
[11]
as respondents to the unfair dismissal claim against Steinmüller.
That is the dispute before us.
Labour
Court
[12]
The
Labour Court (Steenkamp J) granted joinder on 16 February 2012.
It held that Intervalve and BHR could properly be joined
under
rule
22.
[12]
It found that
these parties had a substantial interest in the subject matter of the
proceedings.  That Intervalve and
BHR were the employers of an
employee in proceedings in which the dismissal is challenged “quite
obviously constitutes a
sufficient legal interest in the proceedings”
to join them.
[13]
The
fact that conciliation had already occurred with only Steinmüller
was not a bar, since the Labour Court had previously
held that it has
the power to join additional employer parties to an unfair dismissal
claim even after conciliation.
[14]
Indeed, the rule permitting joinder would serve no purpose if NUMSA
had to refer separate conciliation disputes against each
individual
employer only to apply for consolidation afterwards.  So it
would be overly formalistic to deny joinder.
The legal
representatives for Intervalve and BHR were the very representatives
who had appeared for Steinmüller at the conciliation

proceedings.  They had thus already taken part in the
conciliation process.
Labour
Appeal Court
[13]
Intervalve
and BHR appealed to the Labour Appeal Court.
[15]
On 26 March 2014 it overturned the grant of joinder.
[16]
The Court found that the Labour Court had no jurisdiction to
entertain an unfair dismissal claim against Intervalve or BHR
because
the LRA requires that the matter first be conciliated against
them.
[17]
The Court
pointed out that NUMSA’s uncertainty about which employees
worked for which employers was no bar to its referring
a claim
simultaneously against all possible employers: “There was no
requirement to set out exactly which member worked for
which employer
at that stage, or it could be explained that the members worked for
one alternatively for the other.”
[18]
[14]
The Court thus held that the discretion to
join parties to proceedings cannot trump the clear jurisdictional
requirements of the
LRA.  The application for joinder was anyhow
without merit since Intervalve and BHR did not have a direct and
substantial
interest in the dispute between NUMSA and Steinmüller.
While the two employers were connected with the underlying dispute,

the judgment NUMSA sought against Steinmüller could not affect
them.  They therefore had no interest in it.
In
this Court
[15]
NUMSA
urges that this judgment of the Labour Appeal Court be overturned,
and that the Labour Court’s grant of joinder be reinstated.

It contends that the plain meaning of
section 191
of the LRA is that
only the dispute itself need be referred for conciliation.  The
referral need not mention every employer
involved in it.
Additional employers can be joined later in the proceedings, as
here.  NUMSA prays in aid the interpretive
injunction in
section 39(2)
of the Bill of Rights,
[19]
as well as the constitutional rights to fair labour practices
[20]
and access to courts.
[21]
It
says this will prevent the employees losing their claim against their
employers because of a merely technical omission.
[16]
But, according to NUMSA, even if it is
wrong in its interpretation of
section 191
, and all employer
parties must be cited in the conciliation referral, this Court may
find that citing Steinmüller alone constituted
substantial
compliance with the requirements of
section 191
because “the
courts nevertheless have a discretion at common law and in terms of
the LRA to permit adjudication of a dispute
where one or more parties
did not participate in conciliation
”
.
[17]
In opposing the application for leave to
appeal, Intervalve and BHR support the Labour Appeal Court’s
reasoning.  They
point out that NUMSA did not seek a joinder of
convenience under
rule 22(1)
, where the Court may grant joinder
“if the right to relief depends on the determination of
substantially the same question
of law or fact”, but a joinder
of necessity under
rule 22(2)(a)
, where “the party to be joined
has a substantial interest in the subject matter of the proceedings”.
[18]
They note that NUMSA did not bring a
constitutional challenge to the 30-day referral requirement; hence
the interpretive injunction
in
section 39(2)
cannot help them.
They also emphasise the importance of the speedy resolution of unfair
dismissal disputes.  Allowing
joinder after a case is already
pending in the Labour Court would defeat the purpose of the statute’s
notice requirements
and time restrictions.
[19]
The companies place particular emphasis on
section 191(3).
This provision requires that “[t]he
employee must satisfy the council or the Commission that a copy of
the referral
has been served on the employer”.  This is
peremptory, they contend.  Actual service on every employer is a
prerequisite
for Labour Court jurisdiction.
[20]
Ten
days before the hearing, this Court invited the parties to submit
argument on whether the entitlement to notice under
section 191(3)
may be waived, and, if so, whether Intervalve and BHR waived their
entitlement to separate notice or were otherwise estopped from

relying on its absence.
[22]
[21]
In response, NUMSA cast itself upon the
possibilities these enquiries opened.  It contended that the
companies made an election
to deal with the workers and NUMSA as a
single, composite, group employer – and hence elected to be
dealt with reciprocally
in that way.  Because the companies
conducted themselves so throughout the strike, and issued a single
dismissal notice to
the employees, Intervalve and BHR waived the
right to insist on separate service of the referral.  Any other
approach would
be asymmetrical and unfair.
[22]
In addition, NUMSA argued, the companies
made a series of representations that they were acting collectively
for the purposes of
the strike and the ensuing dismissal dispute.
To their detriment, the employees and NUMSA relied on these
representations.
Intervalve and BHR are therefore estopped from
denying that they received adequate notice.
[23]
With equal vigour, Intervalve and BHR
resisted.  They accepted that service of the referral under
section 191(3)
may be waived, and that a party may be estopped from
relying on the necessity for notice.  But in fact there was no
waiver,
whether express or tacit.  They argued that the joint
dismissal notice did no more than show that the employer companies
acted
together, and that they were willing to receive representations
collectively.  It did not state or imply that, if legal steps

followed, notification to only one company would suffice.  And
if the dismissal notice did not constitute a waiver, it also
could
not constitute a representation to estop the companies from invoking
the absence of separate service under
section 191(3).
Issues
[24]
The issues are:
(a)
Should leave to appeal be granted?
(b)
Is the referral of a dismissal dispute a precondition to the Labour
Court’s jurisdiction?
(c)
Did NUMSA comply with
section 191?
(d)
If not, are Intervalve and BHR precluded from relying on NUMSA’s
non-compliance?
Leave
to appeal
[25]
The
interpretation of the LRA, which gives statutory embodiment to the
right to fair labour practices, raises a constitutional issue.
[23]
The issues at stake – the preconditions to the Labour
Court’s jurisdiction, and the questions of form and substance

and of equitable doctrine in their determination – are
important and arguable.  The interests of justice require that

leave to appeal be granted.
Referral
for conciliation as a precondition to Labour Court jurisdiction
[26]
The
LRA provides that an employee may refer a dispute about the fairness
of a dismissal to a bargaining council having jurisdiction.
[24]
The referral must be made within 30 days,
[25]
though the council may on good cause permit late referral.
[26]
The employee must satisfy the council that a copy of the
referral has been served on the employer.
[27]
The statute requires the council to attempt to resolve the
dispute through conciliation.
[28]
If the council certifies that the dispute remains unresolved,
or if 30 days have expired since the referral and the
dispute
remains unresolved, the statute provides that,
[29]
where the employee alleges that the reason for the dismissal is
participation in an unprotected strike,
[30]
as is the case here, the employee may refer the dispute to the Labour
Court for adjudication.  This referral must be within

90 days,
[31]
though the
Labour Court may condone late referral on good cause shown.
[32]
[27]
The
Labour Appeal Court considered these provisions in
Driveline
.
[33]
There, a dispute was referred for adjudication to the Labour
Court after unsuccessful conciliation.  The question was
whether
the employees’ statement of claim in the Labour Court could be
amended to broaden the dispute’s characterisation.
At
issue was whether the dispute referred for conciliation, namely an
unfair retrenchment, could be amended to encompass
an automatically
unfair dismissal.
[34]
[28]
The
Labour Appeal Court held unanimously that it could, but its members
differed sharply in approach.  The minority (Conradie
JA)
considered that the dispute could be broadened at the litigation
stage because the Labour Court had jurisdiction over that
dispute
regardless of how it was categorised or conciliated at the
conciliation stage.  Non-compliance with conciliation
formalities, including referral for conciliation, was not a
jurisdictional bar to the Labour Court’s hearing the unfair
dismissal
claim.
[35]
[29]
The
minority relied for this conclusion – which lends support to
NUMSA’s stance in this litigation – on
section 157(4).
This provides that the Labour Court “may refuse to
determine any dispute” if the Court is not satisfied “that

an attempt has been made to resolve the dispute through
conciliation”.
[36]
It
inferred from this that the Labour Court had jurisdiction even where
no referral had been made at all.
[37]
The statute imposed no preconditions on that Court’s
jurisdiction; it may or may not, in its discretion, determine
even a
dispute that has not been referred for conciliation.
[30]
The
majority (Zondo AJP, with Mogoeng AJA concurring) firmly rejected
this approach.  It agreed that, for the purposes of Labour
Court
jurisdiction, it did not matter how the dismissed employee
characterised the reason for the dismissal at conciliation.
[38]
But it reached this conclusion quite differently from the
minority.  The Labour Court had jurisdiction because the unfair

dismissal dispute, regardless of characterisation, had in fact been
referred for conciliation.  The proposed amendment did
not
introduce a new dispute, but merely another alleged reason, or
another label, to the same dispute.
[39]
[31]
On
the point crucial to this case, the majority firmly rejected the
proposition that the Labour Court has jurisdiction to adjudicate
a
dispute not referred to conciliation at all.
[40]
It said that it was—
“
as
clear as daylight that the wording of
section 191(5)
imposes the
referral of a dismissal dispute to conciliation before such dispute
can either be arbitrated or referred to the Labour
Court for
adjudication”.
[41]
[32]
The
reasoning of the
Driveline
majority
is, in my view, convincing.
Section 191(5)
stipulates one
of two preconditions before the dispute can be referred to the Labour
Court for adjudication: there must be a certificate
of
non-resolution, or 30 days must have passed.
[42]
If neither condition is fulfilled, the statute provides no avenue
through which the employee may bring the dispute to the
Labour Court
for adjudication.  As Zondo J shows in his judgment, with which
I concur, this requirement has been deeply rooted
in South African
labour-law history for nearly a century.
[43]
We should not tamper with it now.
[33]
And the
Driveline
minority’s approach to
section 157(4)
seems wrong to me.
Section 157(4)(a)
confers upon the Labour Court the power to
refuse to determine a dispute if it is not satisfied that an attempt
has been made to
resolve the dispute through conciliation.
Section 157(4)(b)
then provides that a certificate issued by a
commissioner that a dispute remains unresolved is sufficient proof
that an attempt
has been made to resolve that dispute through
conciliation.  This means that, in a case where a certificate of
non-resolution
has been issued at the end of the conciliation
process, the Labour Court may not, on the strength of
section
157(4)(a)
, decline to determine the dispute.  This is because
section 157(4)(b)
says that the certificate is sufficient proof that
an attempt was made.
[34]
Where no certificate has been issued
because there was, for example, no conciliation meeting, but a period
of 30 days from the date
when the council received the referral has
elapsed, the statute conspicuously does not provide that the expiry
of the 30-day period
is sufficient proof that an attempt was made to
conciliate the dispute.  It is, in my view, in that situation
that the Labour
Court may, in terms of
section 157(4)(a)
, refuse to
determine the dispute.  This provision cannot assist in a case
where the dispute was not even referred to conciliation.
Section 157(4)(a)
underlines the importance the LRA places upon the
need for attempts to be made to try and resolve a dispute through
conciliation
before resorting to other methods of resolution.
[35]
What
is clear is that subsection (4)(a), despite its appearance in the
provision entitled “Jurisdiction of the Labour Court”,
[44]
operates to empower the Court to refuse to determine a dispute, over
which it does have jurisdiction, so as to enable the parties
to
attempt conciliation.  Contrary to the conclusion of the
Driveline
minority, it does not operate to extend the Court’s
jurisdiction to disputes that have not been conciliated at all.
[45]
[36]
The
Driveline
minority worried that making conciliation a jurisdictional
precondition would foster formalism and encourage technicalities.

This would “lead to a resurgence of the kind of point”
that turned the Industrial Court,
[46]
which existed before the LRA was adopted in 1995, into “a
forensic minefield”.  We should not, the minority warned,

“travel that road again”.
[47]
[37]
Subject
to the point that jurisdiction is not a formality, this concern is
warranted.  But it must be tempered with the impact
of the
actual decision in
Driveline
.
The
majority judgment eased markedly the formalities relating to dispute
characterisation at the conciliation stage.
[48]
That counters any resurgence of formalism.
[38]
There
is a further important point, one that is central to the question of
formalism in this case.  The statute makes it easy
to refer
disputes for conciliation.  The facts here illustrate the
point.  Though the initial referral cited Steinmüller

alone, the referral could have mentioned any entity NUMSA suspected
may have been an employer.  Indeed, the second, abortive

referral two months later did precisely this.
[49]
Why NUMSA failed to adopt this expedient from the start we do not
know.  The point is that it could have done so easily.

That is not contested.
[39]
What
is more, though the employee must satisfy the council that a copy of
the referral has been “served” on the employer,
[50]
the statute provides for readily practicable methods of service.  It
can be effected by hand, post or fax.
[51]
In contrast to initiation of process in the Magistrates’ and
Superior Courts,
[52]
proof of
service requires no formality.  So the statute itself, and the
Labour Courts’ jurisprudence, have abated the
risk of crippling
formalism.
[40]
Referral
for conciliation is indispensable.  It is a precondition to the
Labour Court’s jurisdiction over unfair dismissal
disputes.
[53]
NUMSA therefore had to refer the dispute between the employees
and Intervalve and BHR for conciliation.  The question
is
whether it did so.
Was
the dispute with Intervalve and BHR referred for conciliation?
[41]
The
record does not tell us how NUMSA served the referral of the dispute
with Steinmüller on that company.
[54]
What is certain – and Intervalve and BHR accept this – is
that, whether served by hand, post or fax, the referral
would have
arrived at, and been dealt with by, the three companies’ shared
HR services.
[42]
Those
same HR services passed on the matter to the companies’
attorney, Mr Bakker.  He, together with Mr Janse van

Rensburg, Steinmüller’s HR manager, appeared on behalf of
Steinmüller at the conciliation meeting of 19 May 2010.
[55]
The same attorney has subsequently appeared for all three
companies to resist the joinder application.
[43]
And this makes sense.  Intervalve and
BHR do not claim that they ever acted separately.  Nor do they
claim that the identity
of each particular employer at any point
affected either the employees’ conduct, or the employers’
treatment of them.
But this does not mean there was only one
single dispute.  I agree with Zondo J, for the reasons he gives,
that there were
separate disputes with each of the individual
employers.  Those disputes were of the same nature, since the
facts and circumstances
in each were virtually identical.  And
these disputes could of course be encompassed in a single joint
referral to conciliation.
But each dispute could also have been
referred separately – a point that is illuminated by envisaging
that any one
of the employees could have sought separate legal or
union assistance, and procured a separate referral to conciliation of
his
or her individual dispute with the employer.  By corollary,
the dispute involving each employer was a separate dispute from
those
involving the other employers.
[44]
It
is true those dealing with the dismissals on behalf of all three
companies plainly had notice of the referral against Steinmüller.

But can we conclude from these facts that the Steinmüller
conciliation referral encompassed also Intervalve and BHR?
That
depends on whether the prescripts of
section 191
were fulfilled.
In
Maharaj
,
[56]
the Appellate Division stated that, in measuring fulfilment of a
statute’s requirements, the enquiry is not whether there
has
been “exact” or “substantial” compliance.
The question is: was there compliance?
“
This
enquiry postulates an application of the injunction to the facts and
a resultant comparison between what the position is and
what,
according to the requirements of the injunction, it ought to be.
It is quite conceivable that a Court might hold that,
even though the
position as it is is not identical with what it ought to be, the
injunction has nevertheless been complied with.
In deciding
whether there has been a compliance with the injunction the object
sought to be achieved by the injunction and the
question of whether
this object has been achieved are of importance.”
[57]
[45]
This
test focuses on the statute’s objective or purpose.  It
countenances deviation from statutory prescriptions provided
the
purpose has been met.  Since
Maharaj
,
courts have generally adopted a three-step approach to evaluate this;
some courts add a fourth step:
[58]
1.
What is the purpose of the statute as a whole, as well as the
specific provision at issue?
2.
What steps did the party take to comply with the provision?
Here, only the acts of the party seeking to comply are relevant.

The conduct of the other party is not.
3.
Did the steps taken achieve the purpose of the statute and of the
specific provision, even if the precise requirements were not
met?
4.
Was there any practical prejudice because of non-compliance?
[59]
[46]
So whether the referral embraced Intervalve
and BHR depends on the provision’s purpose.  The purpose
of
section 191
is to ensure that, before parties to a dismissal or
unfair labour practice dispute resort to legal action, a prompt
attempt is
made to bring them together and resolve the issues between
them.  Resolving the issues early has benefits not only for the

parties, who avoid conflict and cost, but also for the broader
public, which is served by the productive outputs of peaceable
employment relationships.
[47]
In determining the objectives of
section
191
, none of its provisions can be ignored.  They must all be
taken into account.  That includes the requirement in
section
191(3)
that the employee must satisfy the council that a copy of the
referral has been served “on the employer”.  The

general purpose of
section 191
provides the background against which
the specific purpose of
section 191(3)
must be understood.  The
subsection ensures that the employer party to a dismissal or unfair
labour practice dispute is informed
of the referral.  The
obvious objective is to enable the employer to participate in the
conciliation proceedings, and, if
they fail, to gird itself for the
conflict that may follow.
[48]
But is the purpose broadly to inform the
human agents involved in a dispute that a referral to conciliation
has taken place?
Or is there a narrower purpose?  Here the
wording of
section 191(3)
offers a significant pointer.  Service
must be not on an associated, connected or implicated employer.
It must be on
“the employer”.  Steinmüller was
not the employer: it was
one
of the employers – the employer of some of the employees, but
not of all of them.
[49]
The
Supreme Court of Appeal has twice held that notifying the wrong
party, even because of a mistake, is no notification at all
and
cannot constitute substantial compliance.  In
Malokoane
the injured claimant, through an error on her or her attorney’s
part about the exact date of her accident, submitted a claim
form to
the wrong agent of the Multilateral Motor Vehicle Accidents Fund
(MMF).
[60]
She contended
that the timeous submission of the form to an agent of the MMF, even
the wrong agent, constituted substantial
compliance with the
statute’s notice requirement, because the MMF was the true
defendant and both agents acted for it.
[61]
Both the High Court and the Supreme Court of Appeal rejected this
argument.  The Supreme Court of Appeal found that,
even though
the purpose of the statute was to “provide the widest possible
protection to injured persons”, and that
the claimant had made
a genuine mistake, she nevertheless did not comply.
[62]
[50]
The
Court held that service of the form on an agent with no authority to
deal with the claim was without effect.
[63]
It was irrelevant that the claimant notified an agent of the MMF
within the prescribed time period – because it was
the wrong
agent.  And whether the MMF or some of its agents had actual
knowledge of the claim was not germane; the agent that
the claimant
had in fact informed had no legal authority to receive or handle her
claim.  Therefore there was no compliance.
[64]
[51]
The
Supreme Court of Appeal applied similar reasoning in
Blaauwberg
Meat
.
[65]
There an amendment of a summons was refused where the summons
itself was issued by the wrong party, even though it was a
company
closely associated with the correct party.  This was even though
the declaration attached to the summons mentioned
the correct party
as plaintiff.  The Court held that the summons issued by the
incorrect creditor, even if later corrected,
was not sufficient to
interrupt prescription.  This was even though the process was
issued in the name of the actual creditor’s
parent company, and
the companies shared the same address.  The Court held:
“
The
fact remains that the summons served on the [debtor] failed entirely
to communicate to it the intention of [the actual creditor]
to claim
payment.  The summons did not, therefore, achieve the objects of
section 15(1)
and was not effective to interrupt prescription”.
[66]
The
Court found that the complete lack of service on the debtor could not
possibly have put it on notice that it was subject to
the
proceedings.  Therefore there was no compliance with the
statutory requirement.
[67]
[52]
These decisions seem to me to be right.
And they bear on this case.  The focal question narrows to
the purpose of the
service requirement in
section 191(3).
The objective cannot be just to let the employer know that a dispute,
related to the dispute that affects it, is being conciliated.
It
must be to put each employer party individually on notice that it may
be liable to legal consequences if the dispute involving
it is not
effectively conciliated.  Those consequences may be severe.
They may include enterprise-threatening implications:
trial
proceedings, reinstatement orders, back pay and costs orders. So the
notice must be directly targeted.
[53]
This emerges from the provision, which
explicitly names the beneficiary of the service requirement: “the
employer”.
This makes clear that a referral citing one
employer does not embrace another, uncited, employer.  The fact
that the
uncited employer has informal notice of the referral cannot
make a difference.  The objectives of service are both
substantial
and formal.  Formal service puts the recipient on
notice that it is liable to the consequences of enmeshment in the
ensuing
legal process.  This demands the directness of an
arrow.  One cannot receive notice of liability to legal process
through
oblique or informal acquaintance with it.
[54]
The
separate legal personality of the three employers –
Steinmüller, Intervalve and BHR – cannot be willed away

because there was some overlap in their corporate operations.
They had overlapping boards of directors and interconnected

shareholdings, and a joint holding company.  But this does not
help NUMSA.  NUMSA’s argument depends on the proposition

that knowledge held by an officer or employee of one corporation may
be imputed to other corporations with which she is associated.

That approach has long been alien to our law.
[68]
Our law has also rightly rejected the suggestion that serving
on several corporate boards makes knowledge pertaining to one
company
admissible against the other.
[69]
[55]
This
may be different if the corporate forms are fake.  But there is
no suggestion here that the separate identity of the three
companies
is a sham.  On the contrary, we know that one of them, BHR, is
only 50%-owned by the common holding company, and
that it has its
principal place of business not in Pretoria, but in Mpumalanga.
Clearly, as a legal being, it is markedly
distinct from its sister
companies.  So the fact that, for the limited purposes of the
shared industrial process at the Pretoria
site, the three constituted
a single economic unit, does not justify treating them as a single
legal entity for purposes of citation
in a legal process.
[70]
[56]
In fact, the logic of events counts against
NUMSA’s argument.  A referral arrived at the companies’
shared HR services,
addressed to Steinmüller alone.  That
fact identified Steinmüller as the sole target in the intended
litigation.
Far from putting the other two on notice, it gave
those responsible for their affairs reason to believe that they would
not be
implicated.  They were off the hook.
[57]
While
it is tempting to excoriate the companies’ stance in this
litigation as “cynically opportunistic”, as the
Labour
Court did,
[71]
the assessment
is partial.  It leaves out of account that Steinmüller’s
representatives pointed out to NUMSA that
it was not the employer of
all the employees listed in the referral – and they did so at
the first formal opportunity that
presented itself.  This was at
the conciliation meeting of 19 May 2010, less than five weeks after
the dismissals.  It
is wrong to blame all the sad, perplexing
twists in this case on the employers’ cynicism.
[58]
So the purpose of the statutory provision –
to tell those on the line that the impending legal process might make
them liable
to adverse consequences – was not fulfilled.
That the three companies’ shared HR services, and the
companies’
attorney, knew about the referral against
Steinmüller did not mean that they knew, or should have
concluded, that the dispute
against Intervalve and BHR had also been
referred for conciliation.  On the contrary, the referral
against Steinmüller
alone told them the opposite.
Intervalve and BHR were left out.  The ensuing legal process did
not encompass them.
[59]
The Labour Appeal Court was therefore
correct.  The referral did not embrace Intervalve and BHR.
The question now is
this: is there anything to stop the two companies
from relying on their exclusion from the conciliation process?
Waiver
and estoppel
[60]
This
Court invited the parties to address argument on waiver and
estoppel.  Waiver is the legal act of abandoning a right on

which one is otherwise entitled to rely.
[72]
It is not easily inferred or established.  The onus to prove it
lies with the party asserting waiver.  That party
is required to
establish that the right-holder, with full knowledge of the right,
decided to abandon it.
[73]
[61]
So
waiver depends on the intention of the right-holder.  That can
be proved either through express actions or by conduct plainly

inconsistent with an intention to enforce the right.
[74]
It may be inferred from the outward manifestations of the
right holder’s intention:
“
The
outward manifestations can consist of words; of some other form of
conduct from which the intention to waive is inferred; or
even of
inaction or silence where a duty to speak exists.”
[75]
[62]
Did Intervalve and BHR waive their
entitlement to separate notice of the conciliation process?  The
three companies shared
HR services.  They dealt jointly with the
dismissed employees.  And they issued a joint dismissal letter.
The question
is whether this shows that each of them abandoned its
right to individual notice of impending legal liability.  The
answer
must be No.  To find otherwise would require us to infer
from the companies’ joint conduct an intention to abandon their

right to separate notice when the legal screws tightened.  That
requires a leap that is impossible to make.
[63]
Counsel for the companies contended that
their joint conduct during the strike did no more than show that the
employers acted together
and that they were willing to receive the
employees’ representations collectively.  Their conduct
did not state or imply
that, if the strike ended badly, and the
employees resorted to legal action, notification to any single one of
the companies would
suffice.  That question simply never arose
in the workplace battle that preceded the issue of legal process.
[64]
Those
submissions cannot be gainsaid.  More than 90 years ago, Innes
CJ said that it is “always difficult” to establish

waiver.
[76]
He was, as always, percipient.  His observation applies here.
There is no proof that anyone acting on behalf of
any of the
companies intended to waive the right to separate notice under
section 191(3).
Waiver has not been established.
[65]
Estoppel
by representation, though raised by the Court, also cannot aid
NUMSA.  Estoppel is a legal doctrine that precludes
a person
from denying the truth of a representation made to another if that
other, believing in its truth, acted detrimentally
in reliance on
it.
[77]
[66]
There are two reasons why estoppel cannot
help NUMSA.  First, there is a colourable argument that the
companies were acting
as one entity when they dismissed the
employees.  After all, they did not differentiate between
employees or employers in
the dismissal notices.  But NUMSA’s
argument relies on a crucial further representation – that the
various companies
were one legal entity not just for the purposes of
managing the strike, but for the purposes of subsequently being
sued.
That representation cannot be inferred from the
companies’ joint conduct during the strike and in dismissing
the employees.
[67]
Second, any reliance NUMSA may have placed
on the alleged representation contained in the dismissal letters came
to an abrupt halt
when Steinmüller explained at the conciliation
meeting on 19 May 2010 that it was not the sole employer of the
listed employees.
This makes it doubtful that the detriment
NUMSA or the employees suffered can be attributed to any
representation by the
employers. Indeed, the Bargaining Council
denied condonation after NUMSA’s own further two-month delay
before filing the
second referral.  Estoppel, like waiver,
founders.
[68]
And that is even without taking into
account the companies’ strenuous objection that NUMSA pleaded
neither waiver nor estoppel.
That objection applied trenchantly
to a further possibility the Court canvassed with the parties during
oral argument.  This
was to refer the joinder application back
to the Labour Court for it to hear evidence on whether the companies
were estopped from
relying on the lack of separate notice under
section 191(3).
This was broached because NUMSA’s
founding and replying affidavits in the joinder application
pertinently complained
that “Steinmüller and its sister
companies had created confusion among the workforce as to who the
true employer is”,
and that the corporate structure and the
close working relationship between the three companies had “led
to justifiable confusion
on the part of the individual applicants as
to their true employer”.
[69]
But referral back for evidence on this
issue would not be fair.  The question of estoppel has never
been an issue during these
proceedings.  NUMSA did not raise
it.  If it had, the companies would no doubt have been at pains
to answer it.
For the Court to reshape the issue the parties
brought for adjudication in this way would, in the circumstances, be
an unfair imposition.
And it may unconscionably protract the
proceedings.
[70]
The sole point at issue between the
parties, since NUMSA lodged the joinder application in March 2011,
has been whether it is entitled
to join Intervalve and BHR to the
proceedings against Steinmüller.  The answer to that
question has to be No.
[71]
The
dissenting judgment suggests that the approach favoured here is
overly restrictive and formalistic and will impede the effective

resolution of labour disputes.
[78]
This seems undue.  A clear requirement that a union must include
every employer in conciliation proceedings is likely
to lead to less,
not more, litigation.  The dissent rightly notes that in a
complex working relationship it may be difficult
to determine the
true employer of each employee.
[79]
But the LRA offers condonation if this complexity results in missed
deadlines.  Indeed, condonation for the late referral
involving
Intervalve and BHR was available here, and it is not clear why NUMSA
did not seek to review the Bargaining Council’s
decision in
August 2010 to deny it condonation.  NUMSA may indeed still seek
to review that decision on the basis that, until
the decision of this
Court, it believed that it was entitled to have the companies joined.
[72]
Nor
is condonation the only recourse for the employees who, through no
fault of their own, will be unable to join the action against

Steinmüller.  NUMSA failed to act promptly at various
points during the litigation.  That may make it possible for
the
employees of Intervalve and BHR to seek recompense from it on the
basis of negligent mismanagement of their claim.
[80]
Costs
[73]
As
is usual in bona fide disputes where the parties have a continuing
collective bargaining relationship,
[81]
there will be no order as to costs.
Order
[74]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
ZONDO
J (Mogoeng CJ, Moseneke DCJ, Cameron J, Khampepe J and Leeuw AJ
concurring):
Introduction
[75]
I have had the opportunity of reading the
judgment prepared by my Colleague, Cameron J (main judgment).  I
agree that, for
the reasons he gives, the matter raises
constitutional issues and that it is in the interests of justice that
leave to appeal be
granted.  I also agree with the conclusion he
reaches, the order he proposes and the reasons he gives for the
conclusion that
the appeal should fail.  However, I write
separately to give a certain perspective to some of the issues that
arise in this
matter and to add to the reasons of the main judgment
on why the appeal should fail.  I have also had the opportunity
of reading
the dissent by my Colleague, Nkabinde J.
Brief
background
[76]
It is common cause that a large group of
employees who were members of the National Union of Metalworkers of
South Africa (NUMSA
or union) and employed
by
different but associated companies participated in an unprotected
strike on 14 April 2010 at premises known as Pretoria

Works, in Pretoria.  These premises were shared by a number of
companies.  The companies included Steinmüller, Intervalve,

BHR, KOG and others.  Steinmüller, Intervalve, BHR and KOG
are associated with one another, share certain services such
as human
resources and have certain common directors but they remain separate
legal entities.
[77]
Some of the employees in the group of
strikers were employed by Steinmüller, others by Intervalve and
others by BHR.
The group of strikers was dismissed on 14 April
2010 for participating in the unprotected strike.  The dismissal
was
conveyed by way of one letter which bore the logos of
Steinmüller, Intervalve and KOG.  It is, of course, beyond
dispute
that any employee of any one of the above-mentioned
companies, who was dismissed on 14 April 2010, could only have been
dismissed
by his or her employer or someone acting on behalf of his
or her employer.  This is because in law nobody can dismiss a
person
unless that person is his or her employee, or, if that person
is not his or her employee, unless he or she is authorised by that

person’s employer to dismiss him or her on its behalf.
Accordingly, the position is that on 14 April 2010 each one
of the
three companies dismissed those of its employees who were in the
striking group.  Each one of those companies would
have made its
own decision to dismiss those of its employees who were taking part
in the unprotected strike.
The
first referral
[78]
On
20 April 2010 NUMSA referred a certain dismissal dispute to the Metal
and Engineering Industries Bargaining Council (bargaining
council) in
terms of section 191(1) of the Labour Relations Act
[82]
(LRA) for conciliation.  Only Steinmüller was cited as the
employer party to that dispute.  NUMSA attached a list
of 187
employees to the referral that it alleged had been dismissed by
Steinmüller from its employ on 14 April 2010.
For
convenience I shall refer to this referral as “the first
referral”.  A conciliation meeting was convened by
the
bargaining council but the dispute was not resolved.  The
dispute was then referred to the Labour Court for adjudication
in
terms section 191(5)
[83]
of
the LRA.
The
second referral
[79]
In the meantime NUMSA made another referral
of a dismissal dispute to the bargaining council for conciliation.
It attached
to the referral a list of employees which it alleged had
been dismissed on 14 April 2010 by “Steinmüller
Africa (Pty) Ltd,
alternatively Intervalve, alternatively
KOG Fabricators (Pty) Ltd, alternatively BHR Piping Systems (Pty)
Ltd”.  In
effect, although it cited Steinmüller as
the employer party in this referral, it also cited Intervalve, BHR
and KOG in the
alternative.  For convenience I shall refer to
this referral as “the second referral”.
Joinder
application in the Labour Court
[80]
The second referral was made out of time.
In due course the bargaining council refused condonation.  About
a year later
the union made an application to the Labour Court for an
order joining Intervalve and BHR as respondents in the section 191(5)

trial proceedings.  These related to the dismissal dispute that
had been referred to the bargaining council in the first referral
on
20 April 2010.  The Labour Court joined the two companies
in those proceedings.
In
the Labour Appeal Court
[81]
On appeal the Labour Appeal Court
overturned the decision of the Labour Court.  The reasoning
of the Labour Appeal Court
that led it to the conclusion it reached
was that, since the union did not cite Intervalve and BHR in its
first referral and cited
only Steinmüller, only the dismissal
dispute between the union and Steinmüller was referred to
conciliation by way of
the first referral.  It also held that
the dismissal disputes involving Intervalve and BHR were separate
disputes that required
to be referred to conciliation as well.
The Labour Appeal Court held that that referral could have been done
jointly with
the referral of the dismissal dispute involving
Steinmüller or the dismissal disputes involving Intervalve and
BHR could have
been referred to conciliation separately.
[82]
The Labour Appeal Court held that, as the
dismissal disputes involving Intervalve and BHR had not been referred
to conciliation,
the Labour Court did not have jurisdiction to
adjudicate them in terms of section 191(5) of the LRA.  The
Labour Appeal Court
said this in the light of the fact that the
union’s application to have the two companies joined in the
section 191(5) trial
proceedings relating to the dismissal dispute
involving Steinmüller was intended to enable the Labour Court to
adjudicate
the unfair dismissals disputes involving Intervalve and
BHR.  If the union got the Court to adjudicate those dismissal
disputes
and the Court found the dismissals unfair, the union could
ask the Labour Court to order Intervalve and BHR to reinstate their
respective employees.  The Labour Appeal Court held that the
trial proceedings related to the dismissal dispute between
Steinmüller
and its former employees.  It held that
Intervalve and BHR had no direct and substantial interest in those
proceedings and,
accordingly, the Labour Court should not have
ordered their joinder.
In
this Court
[83]
Before us the union contends that the
Labour Appeal Court erred in concluding that Intervalve and BHR had
no direct and substantial
interest in the section 191(5) trial
proceedings and it should not have set aside the order of the Labour
Court.  The union
bases this contention on three grounds.
The first ground is that out of the dismissal of the group of
employees who took
part in the unprotected strike only one dismissal
dispute arose and that dismissal dispute was referred to conciliation
by way
of the referral of 20 April 2010 and was later referred to the
Labour Court for adjudication.  As to the fact that it did not

cite Intervalve and BHR in its 20 April 2010 referral and
cited Steinmüller only, the union submits that it did
not need
to cite Intervalve and BHR and they could be joined in the section
191(5) trial proceedings.  It submits that, as
this is one
dismissal dispute, Intervalve and BHR have a direct and substantial
interest in the proceedings.
[84]
The
union’s second argument, as I understand it, is that if, out of
the dismissal of the striking group, not one but more
dismissal
disputes arose including dismissal disputes involving Steinmüller,
Intervalve and BHR as separate dismissal disputes,
then the referral
of 20 April 2010 constituted substantial compliance with the
requirement of section 191(1) read with section
191(5)(b)
[84]
of the LRA.  That is the requirement that a dismissal dispute
must be referred to conciliation before it can be referred to
the
Labour Court for adjudication.  The third ground was that the
Labour Court had a discretion to order the joinder
of Intervalve
and BHR in the section 191(5) trial proceedings even if the dismissal
disputes relating to Intervalve and BHR had
not been referred to
conciliation.  I consider each one of these submissions below.
Did
the dismissals of the employees give rise to one dismissal dispute?
[85]
I am unable to agree with NUMSA’s
submission that only one dismissal dispute arose out of the
dismissals of the striking employees
on 14 April 2010.  I note
that the dissent by my Colleague, Nkabinde J, is based on the
proposition that only one dismissal
dispute arose out of the
dismissals of the employees on 14 April 2010.  I endeavour to
show below that this is not so.
I think that the starting point
is to seek an understanding of when it can be said that a dispute
exists or has arisen in any particular
situation.
[86]
The
LRA’s definition of the word “dispute” is simply
that the word includes “an alleged dispute”.
That
is not helpful for our purposes.  In
Huletts
,
[85]
Broome J gave the following definition of the word “dispute”:
“‘
Dispute’
is defined in
The
Shorter Oxford Dictionary
as ‘a controversy’, or, in a weakened sense, ‘a
difference of opinion’.  The service of a notice under

section 15 does not necessarily cause a controversy.  Nor does
any difference of opinion arise at that stage, for the parties
have
as yet expressed no opinion as to the amount of compensation.
The notice calls upon the owner for an expression of opinion
as to
the amount of compensation.
No
difference of opinion
,
and
a fortiori no controversy
,
as
to the amount of compensation can arise until some opinion is
expressed
.”
[86]
(Emphasis added.)
Roper
J had this to say in
Williams
v Benoni Town Council
[87]
about when it could be said that a dispute existed:
“
A
dispute exists when one party maintains one point of view and the
other party the contrary or a different one.  When that
position
has arisen, the fact that one of the disputants, while disagreeing
with his opponent, intimates that he is prepared to
listen to further
argument, does not make it any less a dispute.”
[88]
[87]
In
Durban
City Council
[89]
Selke J, with whom De Wet J concurred, had to consider what the
minimum requirements are that must be met before a dispute could
be
said to exist.  This question arose in the context of an
application for the establishment of a conciliation board under

section 35 of the Industrial Conciliation Act:
[90]
“
I
think it is unnecessary – and it certainly would be unwise –
to attempt a comprehensive definition of the word ‘dispute’

as used in section 35(1) of the Industrial Conciliation Act.  But
whatever other notions the word may comprehend, it seems
to me that
it must,
as
a minimum
so to speak,
postulate
the notion of the expression by parties
,
opposing each other in controversy, of conflicting views, claims or
contentions.”
[91]
(Emphasis added.)
Selke
J’s definition of the word “dispute” was followed
in
Estate
Bodasing
[92]
and in
Eskom
.
[93]
[88]
In
Estate
Bodasing
Caney J said:
“
The
word ‘dispute’ must, I think, be taken to have been used
by the rulemaking body ‘to denote at least the positive
state
of the parties having disagreed, a state of affairs which would not
necessarily arise’ on the making of an application
under Rule
31; see
Huletts
South African Refineries Ltd v South African Railways and Harbours
1945 NPD 413
or, as Selke J said in
Durban
City Council v Minister of Labour
1953
(3) SA 708
at 712 (N), of the word ‘dispute’ it ‘must,
as a minimum, so to speak, postulate the notion of the expression
by
parties, opposing each other in controversy, of conflicting views,
claims or contentions’, in the present instance in
relation to
facts.”
[94]
In
Eskom
Scott J, with whom Williams J concurred, said:
“
I
am satisfied that an unequivocal rejection by an employer of a demand
made on behalf of an employee that he be taken back into
employment
after being dismissed and communicated to the employee would give
rise to a dispute within the meaning of section 35(3)(d)(i)
of the
Act.  It follows that in my opinion, as an objective fact, a
dispute arose between the parties upon receipt by Blankenberg’s

representative of Eskom’s letter of 18 October 1988.”
[95]
[89]
These cases confirm that, in the case of a
dismissal dispute, something more than the fact that a dismissal has
occurred is required
before it can be said that a dispute exists or
has arisen about the fairness of a dismissal.  Given the above
understanding
of when a dispute can be said to exist or when it can
be said to have arisen, I do not know whether as at 20 April 2010 a
dispute
existed or had arisen between Intervalve and its former
employees or between BHR and its former employees about the fairness
of
their respective dismissals.  However, for purposes of this
judgment, I am prepared to assume that those disputes also existed
at
that time.
[90]
No dispute about the fairness or otherwise
of a dismissal arises in a situation where an employer dismisses an
employee and that
employee does not dispute the fairness of that
dismissal but accepts the dismissal and walks away.  However, if
that employee
disputes the fairness of that dismissal and the
employer maintains its position that the dismissal is fair, a dispute
does arise.
This is a clear case of one dismissal dispute or a
single dismissal dispute.
[91]
If two employees, Mr Dlamini and Mr Smith,
who belong to the same union are dismissed by their employer,
ABC (Pty) Ltd (ABC),
after a joint disciplinary hearing where
they faced the same allegations of misconduct and one of them accepts
the dismissal and
walks away and the other disputes the fairness of
the dismissal and conveys that to the employer, only one dismissal
dispute arises.
If, however, they both dispute the fairness of
their respective dismissals, in law two dismissal disputes arise.
The one
dismissal dispute is between Mr Dlamini and ABC.  The
other is between Mr Smith and ABC.  This is despite the fact
that
there is much in common between the two dismissal disputes such
as that both employees belong to the same union, were employed by
the
same employer, faced the same allegations of misconduct like
participating in an unprotected strike and shared the same
disciplinary
enquiry before they were dismissed.
[92]
Mr Dlamini and Mr Smith may refer their
respective dismissal disputes to conciliation jointly by way of a
single referral or they
may refer their respective dismissal disputes
to conciliation separately in two referrals.  If Mr Dlamini
refers his dismissal
dispute to conciliation and Mr Smith does not
refer his, Mr Dlamini’s dismissal can later be referred to the
Labour Court
for adjudication in terms of section 191(5) of the
LRA if the dispute remains unresolved after the conciliation
process.
If Mr Smith wishes his dismissal dispute to also be
adjudicated by the Labour Court when he realises that Mr Dlamini’s
one
is about to be adjudicated and Mr Dlamini might get his job back,
he would face the hurdle that his dispute was not referred to

conciliation.  Mr Smith cannot be saved by the argument that his
dispute and that of Mr Dlamini’s are one and the same
dispute
and, therefore, the Labour Court should join him in the trial
proceedings relating to Mr Dlamini’s dismissal
dispute.
[93]
The same would apply if Mr Smith referred
his dispute outside the prescribed 30-day period and condonation was
refused and he did
not take the decision on review.  In law the
two disputes are separate disputes.  Mr Dlamini could refer his
dispute
with ABC to conciliation separately and independently of Mr
Smith’s dispute with ABC.  He could take it to his own
attorney
and instruct him to handle it for him.  He could allow
his union to handle it or he could handle it himself.  He could

settle it out of court with his employer without his union and
irrespective of what Mr Smith does with his.  The same applies

to Mr Smith and his dismissal dispute with ABC.  After Mr
Dlamini has settled his dispute with his employer, Mr Smith would
be
able, if he has referred his dispute timeously to conciliation and
later to adjudication, to pursue litigation on his dispute
with ABC
up to the highest court in the land.  He would not in any way be
affected by the fact that Mr Dlamini had settled
his own dispute with
the same employer out of court.
[94]
What I have said above about Mr Dlamini and
Mr Smith’s dismissal disputes reveals that, despite the fact
that Mr Dlamini and
Mr Smith belong to the same union, were employed
by the same employer, attended the same disciplinary inquiry facing
the same allegations
of misconduct and were dismissed at the same
time for the same reason, if each one of them disputed the fairness
of his dismissal,
their dismissals would give rise to two separate
dismissal disputes.  If this principle applies to two employees
of the same
employer, it must apply with even more force to a case,
such as the present, where the employees were employed by different
employers.
[95]
In
the present case there are at least four companies that dismissed
their employees who participated in the strike.  The group
of
workers who were employed by Steinmüller can have their own
dismissal disputes with their employer, those who were employed
by
Intervalve could have their own dismissal disputes with Intervalve
and those who were employed by BHR could have their own dismissal

disputes with BHR.  That would be the same as in
Black
Allied Workers Union and Others v Palm Beach Hotel
,
[96]
Black
Allied Workers Union and Others v Asoka Hotel
,
[97]
Black
Allied Workers Union and Others v Edward Hotel
[98]
and
Black
Allied Workers Union and Others v Prestige Hotels CC t/a Blue Waters
Hotel
[99]
all of which, as I point out below, were treated as separate
dismissal disputes despite sharing a lot of common features.
[96]
In the present case, assuming that all the
employees who were dismissed on 14 April 2010 disputed the
fairness of their
dismissals, multiple dismissal disputes  would
have arisen because some of the dismissed employees had been employed
by Steinmüller,
others by Intervalve, others by BHR and so on.
In law it cannot, therefore, be said that the dismissals of the group
of workers
on 14 April 2010 gave rise to one dismissal dispute.
To say the least, it can be said that those dismissals may have given

rise to dismissal disputes between Steinmüller and its former
employees, Intervalve and its former employees and BHR and its
former
employees.  These dismissal disputes were separate disputes that
had many common features.
[97]
Even
during the 1980s under the Labour Relations Act of 1956
[100]
(1956 Act) – before the advent of democracy – the
dismissal of groups of workers belonging to the same union by
different
employers for participation in a joint strike were regarded
as giving rise to multiple dismissal disputes.  In the cases of
Black
Allied Workers Union and Others v Palm Beach Hotel
,
[101]
Black
Allied Workers Union and Others v Asoka Hotel
,
[102]
Black
Allied Workers Union and Others v Edward Hotel
[103]
and
Black
Allied Workers Union and Others v Prestige Hotels CC t/a Blue Waters
Hotel
[104]
workers employed by a number of hotels and restaurants in and around
Durban and who were members of the Black Allied Workers Union
(BAWU)
made the same demands to their respective employers, participated in
the same strike, and were dismissed on the same day
or more or less
on the same day for the same reasons.
[98]
Arising out of those dismissals separate
dismissal disputes (then called unfair labour practice disputes under
the 1956 Act) arose
including those between BAWU and the Palm Beach
Hotel; BAWU and the Asoka Hotel; BAWU and the Edward Hotel; and BAWU
and Prestige
Hotels.  As the dismissal disputes in the hotel
cases were separate dismissal disputes, all of them could be referred
to conciliation
either jointly or separately.  As it turned out,
they were all referred to conciliation and to court as separate and
independent
dismissal disputes and were accepted as such by both the
industrial council and the Industrial Court.
[99]
In the above hotel cases BAWU could not,
after referring the dismissal dispute relating to Palm Beach Hotel to
conciliation, decide
not to refer the other dismissal disputes to
conciliation on the basis that they were one and the same dispute as
the dismissal
dispute in
Palm Beach
Hotel
that had been referred to
conciliation.  BAWU had to refer all of them to conciliation
which it did.  The next question
to decide is: which ones of the
different or separate dismissal disputes that arose from the
dismissal of strikers on 14 April
2010 did the union refer to
conciliation in the first referral?
What
dispute was referred to conciliation?
[100]
Once it is accepted that the dismissal of
the employees who took part in the strike on 14 April 2010 could have
given rise to multiple
dismissal disputes, the next inquiry is to
determine whether the referral of 20 April 2010 was limited to the
dismissal dispute
between the union and Steinmüller or whether
it included the dismissal disputes between the union and Intervalve
as well as
the dismissal dispute between the union and BHR.  How
does one determine this?  The only way to determine this lies in

examining and construing the contents of the referral documents.
[101]
NUMSA admits that the unfair dismissal
“claim” that it referred to the bargaining council on 20
April 2010 was against
Steinmüller only as the employer party.
Ms Norma Craven, a Legal Officer employed by NUMSA, says in her
founding affidavit
in this Court: “[t]he unfair dismissal claim
was originally referred only against the third respondent,
Steinmüller
Africa (Pty) Ltd”.  She then says: “After
the initial referral, it became apparent that some of the individual

employees may be employed by entities other than Steinmüller
Africa (Pty) Ltd.  Accordingly, the [union] applied in terms
of
Rule 22 [of the Rules of the Labour Court] for the joinder of the
other alleged employer entities.”  Later on she
repeats:
“The claim was initially brought against Steinmüller
alone.”
[102]
The union did not include in the record the
referral form that it used to make the referral of 20 April 2010.
However, we
do have in the record the referral form that the union
used for the second referral which is identical to the referral form
that
the union would have used on 20 April 2010.  Paragraph 1 of
the referral form requires particulars of the party referring the

dispute.  In paragraph 1 the union would have put itself only or
itself and the dismissed employees as the referring party.
Paragraph
2 requires the details of the other party to the dispute.  The
heading to paragraph 2 reads: “DETAILS
OF THE OTHER PARTY
(PARTY WITH WHOM YOU ARE IN DISPUTE)”.  Here the union
stated that the other party to the dispute
was Steinmüller.
[103]
Paragraph 2 of the referral form also
requires the referring party to state whether the other party with
whom it is in dispute is
an employer, union, employee or employers’
organisation.  In paragraph 2 the union would have stated that
Steinmüller
was the employer.  Paragraph 3 bears the
heading: “NATURE OF THE DISPUTE”.  It then has the
question: “What
is the dispute about?” and then a space
is provided.  Under paragraph 3 the party referring the dispute
is required
to “summarise the facts of the dispute you are
referring.”  Under paragraph 3 the union would have
indicated that
the workers listed in the referral had been dismissed
by Steinmüller on 14 April 2010 for participating in
an unprotected
strike.  It would also have probably alleged that
the dismissal was procedurally and substantively unfair.
[104]
Paragraph 4 of the referral form required
the date of dismissal and the place where the dismissal was
effected.  Here the union
would have given 14 April 2010 as the
date of dismissal and Pretoria as the place where the dismissal was
effected.  Paragraph
6 required the specification of the result
or outcome that the referring party would like to have out of the
conciliation process.
In that paragraph the union would have
indicated reinstatement or payment of compensation as the result it
sought out of the conciliation
process.
[105]
The above means that the first referral was
used to refer to conciliation only the dismissal dispute between the
union and Steinmüller
in respect of the dismissal of the
employees appearing on the list attached to that referral.  The
fact that we now know that
some of the employees whose names appeared
on that list were not employed by Steinmüller but by Intervalve
and BHR is neither
here nor there.  This is because in that
referral all the employees were alleged to have been employed by
Steinmüller.
Intervalve and BHR were not mentioned at all
in the referral.
[106]
The conclusion is inescapable that the
first referral did not include the dismissal dispute between
Intervalve and its former employees
and the dismissal dispute between
BHR and its former employees.  Therefore, those dismissal
disputes were not referred to
the bargaining council for conciliation
in the first referral.  I am unable to agree with the
proposition that the first referral
was for any dispute other than
the dispute between the union and Steinmüller about the fairness
of the dismissal of the employees
whose names appeared on the list
attached to the referral.  In this regard it must be remembered
that, in so far as that list
included names of persons who had not
been employed by Steinmüller and, therefore, could not have been
dismissed by Steinmüller,
the definition of the word “dispute”
in section 213 of the LRA includes an alleged dispute.
Did
the Labour Court have jurisdiction?
[107]
The next question is whether the dismissal
disputes involving Intervalve and BHR could be adjudicated by the
Labour Court notwithstanding
the fact that they had not been referred
to conciliation.  The union contended that the Labour Court had
a discretion to allow
the joinder of Intervalve and BHR even if the
dismissal disputes relating to those companies had not been referred
to the bargaining
council for conciliation.
[108]
The main judgment holds that the Labour
Court has no jurisdiction to adjudicate the Intervalve dismissal
dispute and the BHR dismissal
dispute as these disputes were never
referred to conciliation.  This is right.  The Labour Court
does not even have a
discretion to adjudicate a dismissal dispute
that has not been referred to conciliation.  The union is using
the joinder provision
of the Rules of the Labour Court for a purpose
for which they were not made.  It is using them to get the
Labour Court to
adjudicate dismissal disputes that were not referred
to conciliation because the council refused condonation in respect of
the
second referral which covered those dismissal disputes.  The
effect of that decision was that the council refused the union

permission to refer the dismissal disputes relating to Intervalve and
BHR outside the prescribed 30-day period.
[109]
That the dismissal disputes between
Intervalve and its former employees and between BHR and its former
employees cannot be referred
to adjudication without having first
been referred to a conciliation process is in accordance with a
well-known and well-settled
principle of labour law that labour
disputes should be referred to a conciliation process before they can
be the subject of arbitration
or adjudication or industrial action.
[110]
Section 191(1) to (4) of the LRA reads:
“
(1)
If
there
is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute in writing within 30 days of
the date
of dismissal to—
(a)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(b)
the Commission, if no council has jurisdiction.
(2)
If the employee shows good cause at any time, the council or
Commission may permit the employee to refer the dispute after the

30-day time limit has expired.
(3)
The employee must satisfy the council or the Commission that a copy
of the referral has been served on the employer.
(4)
The council or the Commission must attempt to resolve the dispute
through conciliation.”  (Emphasis added.)
[111]
The provision of the LRA that enables a
dispute about the fairness of a dismissal for striking to be
adjudicated by the Labour Court
is section 191(5).  In so far as
it is relevant, it reads:
“
If
a
council
or a commissioner has certified that
the
dispute
remains unresolved, or
if
30 days have expired since the
council
or the Commission received the
referral and the
dispute
remains unresolved—
(a)
the council or the Commission must arbitrate the dispute at the
request of the employee if—
(i)
the employee has alleged that the reason for dismissal is related to
the employee’s conduct or capacity, unless paragraph
(b)(iii)
applies;
(ii)
the employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable; or
(iii)
the employee does not know the reason for dismissal; or
(b)
t
he 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 employees 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.”

(Emphasis added.)
[112]
The dispute referred to in section 191(5)
is the same dispute to which reference is made in section 191(1) i.e.
a dispute about
the fairness of a dismissal.  Section 191(5)
creates two conditions one of which must be met before a dismissal
dispute
may be arbitrated or may be referred to the Labour Court for
adjudication.  The first condition is that the CCMA or
bargaining
council, as the case may be, must have issued a
certificate of non-resolution of the dispute.  The second is
that a period
of 30 days from the date on which the CCMA or the
bargaining council received the referral must have lapsed.
[113]
That these two events are preconditions is
made clear by the use of “if” at the beginning of the
first event mentioned
in section 191(5) and the repetition of that
“if” just before the second event in the provision.
Either the council
or commissioner must have certified that the
dispute remains unresolved or 30 days must have expired since the
council or the Commission
received the referral and the dispute
remains unresolved.  It follows that, if none of these
preconditions has been met in
a particular case, the employee may not
refer the dispute to the Labour Court for adjudication under section
191(5)(b).
[114]
Section 191(5)(a) relates to those cases
which do not qualify to be taken to the Labour Court after one of the
two events has been
met.  Those are the dismissal cases that
must be arbitrated by the relevant council or by the CCMA.  In
regard to those
cases section 191(5) provides for the employee to
request that the council or the CCMA arbitrate the dispute.  An
employee
may only competently make that request when one of the
events has occurred.  Where one of the preconditions has been
met and
the employee makes the request, the council or the CCMA
must
arbitrate the dispute.
[115]
Unfortunately,
the LRA does not deal with the jurisdiction of the Labour Court or
the CCMA or bargaining councils in one section.
One finds
sections that deal with the jurisdiction of these structures in
various parts of the statute in regard to various disputes.
[105]
It seems to me that, whatever terminology one may use to describe the
effect of section 191(5)(b), it lays down two preconditions
one of
which must be met before a dispute concerning the dismissal of
employees for striking may be referred to the Labour Court
for
adjudication.  If neither of the preconditions has been met, the
Labour Court has no jurisdiction to adjudicate the dispute.
The
event of the expiry of 30 days applies if the dispute has been
referred to the council or CCMA for conciliation under section

191(1).
[116]
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 past 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.
I narrate part of the history
below.
[117]
Section 11(1) of the Industrial
Conciliation Act, 1924 (1924 Act) read:
“
Whenever
an industrial council or a conciliation board [had] considered any
dispute between a local authority and its employees
upon work
connected with the supply of light, water, . . . and has failed to
settle the dispute, the council or board shall—
(a)
require the parties to the dispute to agree together within three
days upon the appointment of an arbitrator for the determination
of
the dispute; and
(b)
communicate to the Minister the fact of such failure and the name of
any arbitrator agreed to by the parties to the dispute
that no
agreement has been come to, if such is the case.”
[118]
It is to be noted that the provision opened
with the word “whenever”, and then said “the
council or board shall
. . .” whereafter followed provisions
relating to arbitration.  So, even then, such a dispute was
required to have been
referred to a conciliation process first and a
conciliation board was required to have failed to settle the dispute
before it could
go to arbitration.  That is what section
191(5)(a) also captures.  Section 191(5)(b) captures the same
principle except
that instead of arbitration, it refers to
adjudication.
[119]
Section
12(1)(a) and (b) of the 1924 Act captured the principle that a strike
or lock-out could not lawfully be resorted to until
the dispute had
been submitted to an industrial council or until the dispute had been
“considered and reported on by a conciliation
board”.
[106]
[120]
This
principle was also captured in the Industrial Conciliation Act
[107]
(1937 Act) in respect of strikes and lock-outs.  Section
65(1)(c) precluded strikes and lock-outs when neither section

65(1)(a) nor (b) applied:
“
(i)
[i]f there is an industrial council having jurisdiction,
unless
the matter giving occasion for the strike or lock-out has been
considered by that council and until
—
(aa)
the council has reported thereon to the Minister in writing
;
or
(bb)
a period of thirty days reckoned from the date on which the matter
was submitted to the council, or such longer period as the council

may fix has expired,
whichever
event occurs first
; or
(ii)
if there is no such council,
unless application has been made
under section thirty-five or sixty-four for the establishment of a
conciliation board for the consideration
of the said matter
,
and
until
—
(aa)
any board that may be established has reported thereon to the
Minister
in writing; or
(bb)
the period of thirty days reckoned from the date on which the
Minister has approved of the establishment of a board or such
longer
period as the board may fix has expired; or
(cc)
the Minister has refused to approve of the establishment of the
conciliation board; or
(dd)
if the Minister has not within a period of twenty-one days reckoned
from the date on which the application was lodged approved
or refused
to approve of the establishment of a board, the expiration of that
period,
whichever
event occurs first”.  (Emphasis added.)
[121]
I draw attention to the terms of section
65(1)(c) of the 1937 Act that, if there was an industrial council
that had jurisdiction
in regard to a dispute, it was one of the
conditions for going on a strike that would not constitute a criminal
offence that the
dispute should have been referred to that industrial
council and that council should have considered the dispute first.
If
no industrial council had jurisdiction in respect of the matter,
then in terms of section 65(1)(c)(ii) it was a precondition that
an
application should have been made for the establishment of a
conciliation board for the consideration of the dispute.
[122]
Also, section 65(1)(c)(i)(aa) and (bb) of
the 1937 Act provided for a condition that the industrial council
should have reported
on the dispute after considering it or that a
period of 30 days should have expired.  The precondition that
the industrial
council had to have reported on the dispute serves the
same purpose as the requirement under section 191(5) of the LRA that
a certificate
of non-resolution of the dispute must have been
issued.  The precondition of the expiry of 30 days in
section 65(1)(c)(i)(bb)
is the same period of 30 days that we
find as a precondition in section 191(5) of the LRA.  The same
preconditions are also
found in section 65(1)(c)(ii)(aa) and
(bb) of the 1937 Act.
[123]
Finally, section 46(1) of the 1937 Act
read:
“
Whenever
a dispute between a local authority and its employees engaged in the
performance of work connected with the supply of light, power
or
water or with sanitation, passenger transportation or the
extinguishing of
fires has been referred
to an industrial council, or whenever the establishment of a
conciliation board to consider and determine
any such dispute has
been approved, and the council or board has failed to settle the
dispute within a period of thirty days reckoned
from the date of
reference or the date of approval of establishment
,
as the case may be,
or
such further period or periods as the Minister may fix, or before the
expiration of that period or further period or periods, has
satisfied
itself that further deliberation will not result in a settlement of
the dispute,
the dispute shall be
submitted to arbitration for decision
.”
(Emphasis added.)
This
provision also shows that the referral of a dispute to conciliation
in the circumstances envisaged in the section was a precondition

before the dispute could be the subject of compulsory arbitration.
[124]
The
principle was continued with in the Industrial Conciliation Act
[108]
later renamed Labour Relations Act, (1956 Act), which was repealed by
the current Act.  Section 65 of the 1956 Act made it
a criminal
offence to resort to a strike or lock-out without subjecting the
dispute to the process of a conciliation board or to
an industrial
council.  Section 43 of the 1956 Act conferred power on the
Industrial Court to grant status quo orders (that
is, reinstatement
orders) but one of the jurisdictional requirements before the court
could exercise that power was that the employee
must have applied to
the Minister of Labour for the establishment of a conciliation board
in terms of section 35 of that Act.
In
Marievale
Consolidated Mines
[109]
Goldstone J held that a section 43 order was only competent “where
there is a valid reference of a dispute to an industrial
council or
where (as in the present case) there is no industrial council an
application has been made under section 35(1) for the
establishment
of a conciliation board in respect of the dispute”.
[125]
Section 46(9)(a) of the 1956 Act gave the
Industrial Court the power to adjudicate unfair labour practice
disputes.  Those
disputes included dismissal disputes.  Section
46(9)(a) made it clear that the Industrial Court could not determine
an unfair
labour practice dispute unless it had first been referred
to conciliation.  Section 46(9)(a) reads:
“
The
industrial court shall not determine a dispute regarding an alleged
unfair labour practice unless such dispute has been referred
for
conciliation to either an industrial council having jurisdiction or,
where no such industrial council exists, to a conciliation
board.”
[126]
Section 46(9)(b)(i) and (ii) of the 1956
Act, as amended, read as follows just before the LRA came into
operation:
“
(b)
If
a
dispute concerning an alleged unfair labour practice has been
referred to—
(i)
an industrial council having jurisdiction in respect thereof, and
that industrial council has failed to settle such dispute
within the
period of 30 days, or within the further period or periods, referred
to in section 27A(2),
any party to the dispute may
as
soon as possible after the expiration of the said period, or the said
further period or periods, but not later than 90 days
from the date
on which that period, or that further period or periods as the case
may be, have lapsed,
refer the dispute to the industrial court for
determination
and . . . ; or
(ii)
a conciliation board and that board has failed to settle the
dispute within the period of
30 days, or within the further
period or periods
,
referred to in section 36(1)(a)
,
any
party to the dispute may
as soon as possible
after the
expiration
of the said period, or the said further period or
periods . . . as the case may be, have lapsed,
refer the dispute
to the industrial court for determination
. . . .”
(Emphasis added.)
[127]
It will be seen that, like section 191(5)
of the LRA, which governs the referral of dismissal disputes to
arbitration and adjudication,
section 46(9)(b)(i) and (ii) of its
predecessor commenced a provision designed to serve the same purpose
with the word “if”.
Also, apart from “if”,
which started the relevant sentence in section 46(9)(b) of the 1956
Act and starts the relevant
sentence in section 191(5) of the LRA,
one finds the phrase “may refer” in both the relevant
sentence of section 46(9)(b)
of the 1956 Act as well as in the
relevant sentence of section 191(5) of the LRA.  The reference
to the 30 days’
period that we have in section 191(5) of the
LRA was also contained in section 46(9)(b) of the 1956 Act.
Before the repeal
of the 1956 Act by the LRA, it was widely accepted
that the Industrial Court had no jurisdiction to determine an unfair
labour
practice dispute that had not first been referred to a
conciliation process.  Section 191(5) captures the same
principle.
[128]
Finally, under section 64(1) of the LRA, a
strike or lock-out may be resorted to only:
“
if—
(a)
the issue in dispute has been referred to a council or to the
Commission 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 Commission; and after . . . .”
It
is clear from this provision that, before a dispute can be the
subject of a strike or lock-out, the dispute must have first been

referred to conciliation and either a certificate that the dispute
remains unresolved must have been issued or a period of 30 days

must have elapsed from the date when the council or the CCMA received
the referral.  The only circumstances when this requirement
need
not be complied with are those stipulated in section 64(3).
[110]
Otherwise, the requirement is compulsory before a strike or lock-out
may be resorted to.  The “if” which
we see in
section 191(5) introducing the preconditions one of which must be met
before a dismissal dispute can be referred to arbitration
or
adjudication is also present in section 64(1) where it introduces the
same preconditions in regard to resorting to strikes and
lock-outs.
[129]
It
is true that under the 1956 Act the principle that an unfair labour
practice dispute was required to be referred to conciliation
before
it could be determined by the Industrial Court was subject to one
exception.  The exception was where all the parties
to a dispute
agreed that there were no prospects that the dispute could be settled
through the conciliation process and agreed
that it should be
referred straight to the Industrial Court for determination.
[111]
The current Act has no equivalent provision.  Instead, in terms
of section 64(3) of the current Act a strike or lock-out
may be
resorted to under certain defined circumstances without the issue in
dispute having been referred to a conciliation process.
This is
an exception rather than the norm.  The 1956 Act had no
equivalent provision in regard to strikes or lock-outs.
The
Explanatory Memorandum,
[112]
which accompanied the Labour Relations Bill that later became the
current Act and has been used by this Court as an interpretive
guide
or source for the current Act, it is said:
“
[The
CCMA’s] commissioners will attempt in the first place to
resolve disputes by conciliation, mediating where appropriate.

A commissioner will be empowered to attempt other means of resolving
the dispute such as fact finding . . . .
Only
where these attempts fail will the commissioner determine certain
disputes by arbitration.  Where disputes are to be adjudicated

by the Labour Court
,
the
Commission will first seek actively to engage parties in an attempt
to resolve disputes to avoid unnecessary litigation
”.
[113]
(Emphasis added.)
[130]
Even
the International Labour Organisation (ILO) has recognised this
principle in the Labour Relations (Public Service) Convention,

1978.
[114]
Clause 8 of
the Convention reads:
“
The
settlement of disputes arising in connection with the determination
of terms and conditions of employment shall be sought as
may be
appropriate to national conditions, through negotiation between the
parties or through independent and impartial machinery,
such as
mediation,
conciliation
and arbitration, established in such a manner as to ensure the
confidence of the parties involved.”  (Emphasis added.)
In
fact as long ago as 1978 the Freedom of Association Committee of the
ILO said:
“
The
Committee has recognised in a number of cases that . . . compulsory
conciliation and arbitration in industrial disputes before
calling a
strike are provided for in the laws or regulations of a substantial
number of countries, and that reasonable provisions
of this type
cannot be regarded as an infringement of freedom of
association.”
[115]
Substantial
compliance
[131]
When it is said that there was substantial
compliance with section 191 of the LRA in this matter, it is
important to ask the question:
substantial compliance with what
requirement of the Act?  Is it meant that there was substantial
compliance with section 191(1)
or with section 191(3)?  To say
that there was substantial compliance with section 191(1) would mean
that there was compliance
with the requirement for the referral of
the dismissal disputes involving Intervalve and BHR to the bargaining
council for conciliation.
Substantial compliance with section
191(3) would mean that there was compliance with the requirement that
the bargaining council
or CCMA “must satisfy itself that a
referral has been served on the employer”.
[132]
To the extent that it is said that there
was substantial compliance with section 191(1), it has to be
shown that the dismissal
dispute between Intervalve and its former
employees and the dismissal dispute between BHR and its former
employees were referred
to the bargaining council for conciliation in
the first referral.  In my view there is no room for the
contention that in
this case there was substantial compliance with
section 191(1).  The only referral that the union made on
20 April 2010
was a referral of the dismissal dispute
between Steinmüller and its former employees represented by the
union.  That
referral did not include the dismissal disputes
between Intervalve and its former employees or the dismissal dispute
between BHR
and its former employees.  The documentation that
was put before the bargaining council for the purpose of the referral
of
20 April 2010 did not contain any reference to Intervalve or BHR.
As far as the bargaining council was concerned and, objectively

speaking, the dismissal dispute that was referred to the council was
between Steinmüller and its former employees.
[133]
The list of the employees that the union
attached to the referral included former employees of Intervalve and
BHR who were dismissed
on 14 April 2010.  That cannot help the
union because in that referral the union alleged either expressly or
by necessary
implication that all the employees on the list had been
employed by Steinmüller and were dismissed by Steinmüller.

In that referral there was not even a single reference to any
dismissal dispute between Intervalve and BHR and any employees that

the two companies had dismissed on 14 April 2010.
[134]
Either the dismissal disputes involving
Intervalve and BHR were referred to conciliation or not.  There
is no room for a proposition
that there was almost a referral or
there was an imprecise referral of the dismissal disputes involving
Intervalve and BHR and,
therefore, there was substantial compliance.
An examination of the referral form identical to the one used on 20
April 2010
reveals that there is nothing in the content thereof that
would support the proposition that the referral was used to refer the

dismissal disputes involving Intervalve and BHR to conciliation.
In fact the contents of the referral documents contradict
that
proposition.
[135]
The identity of those who attended the
subsequent conciliation meeting is irrelevant to whether the
dismissal dispute between Intervalve
and its former employees and the
dismissal dispute between BHR and its former employees were referred
to the bargaining council
for conciliation on 20 April 2010.
Since the dismissal disputes involving Intervalve and BHR were not
referred to conciliation
on 20 April 2010, the question of whether
the purpose of section 191(1) or 191(3) could have been achieved does
not arise.
This is because the purpose of the section can only
be achieved if a dismissal dispute had been referred to the
conciliation process.
If there was no compliance with section
191(1), there could obviously not be compliance with section 191(3)
because a non-existent
referral could not have been served on the
employer.
[136]
The union knew the legal position that a
dismissal dispute that had not been referred to conciliation could
not be referred to adjudication
by the Labour Court.  That is
why on 22 July 2010 it made the second referral and cited not just
Steinmüller this time
around but also Intervalve, BHR and KOG.
The question that arises is: if the dismissal dispute between
Steinmüller and
the employees whose names were attached to that
referral is the same dispute as the dismissal dispute between
Intervalve and its
former employees or as the dismissal dispute
between BHR and its former employees, why did the union make the
second referral in
which it cited Intervalve, BHR and KOG?  Why
did it not wait for the stage of the trial proceedings and then apply
for the
joinder of Intervalve and BHR without having tried to refer
those disputes to conciliation?
[137]
The answer is that the union realised that
the first referral did not include any dismissal dispute between
Intervalve and its former
employees or between BHR and its former
employees and this meant that the Labour Court would not have
jurisdiction to adjudicate
those dismissal disputes.  It was
after the bargaining council had refused condonation that the union
thought of using the
joinder strategy to try and bring the dismissal
disputes involving Intervalve and its former employees and BHR and
its former employees
through the back door into the trial proceedings
relating to the dismissal dispute between Steinmüller and its
former employees.
This was a ploy by the union to circumvent
the decision of the bargaining council refusing it condonation in
respect of the dismissal
disputes involving Intervalve and BHR.
[138]
NUMSA needs Intervalve and BHR to be
respondents in the trial proceedings relating to the dismissal
dispute between Steinmüller
and its former employees or its
alleged former employees so that it can ask the Labour Court to order
these two companies to reinstate
their former employees or to pay
them compensation for unfair dismissal.  That, of course, can
only happen if those disputes
are adjudicated by the Labour Court.
However, they cannot be adjudicated by the Labour Court if they have
not been referred
to the bargaining council for conciliation.
Hence, the stratagem of using the process of a joinder.  A
joinder under
Rule 22 is not competent in these circumstances.
In this regard Ms Craven said in her affidavit: “After the
initial
referral, it became apparent that some of the individual
employees may be employed by entities other than Steinmüller
Africa
(Pty) Ltd.  Accordingly, the [union] applied in terms of
Rule 22 for the joinder of the other alleged employer entities.”
[139]
Finally, section 191(1)(a) requires that a
dismissal dispute be referred to “a council,
if
the parties to the dispute fall within the registered scope of that
council
.”  (Emphasis
added.)  This means that a bargaining council needs the parties
to be specified in the referral so
that it can determine whether the
parties fall within its registered scope.  This provision is
necessary for the council to
establish whether or not it has
jurisdiction in respect of the dispute.  If both the employer
and the employee or employees
involved in a dismissal dispute fall
within the council’s scope of registration, the council will
have jurisdiction.
If, however, they do not both fall within
the registered scope of the council, the council will not have
jurisdiction to conciliate
the dispute.
[140]
This provision reveals part of the legal
significance for the referring party to cite the correct employer
party to the dispute
in the referral documents and not leave out an
employer who should be cited.  If, as in the present case,
certain entities
that are said to have employed some of the employees
are not cited in the referral, the bargaining council would not be
able to
establish whether the parties fall within its registered
scope and, therefore, whether it has jurisdiction in respect of the
dispute.
The union’s failure to cite Intervalve and BHR
in the referral of 20 April 2010 made the achievement of the purpose
of section
191(1) impossible.
[141]
In the circumstances the appeal must fail.
NKABINDE
J (Froneman J, Jafta J, Madlanga J and Van der Westhuizen J
concurring):
Introduction
[142]
At
the heart of this matter is whether NUMSA complied with section 191
of the LRA.
[116]
The
matter implicates the power of the Labour Court.  That Court
decided in favour of NUMSA and the individual claimants.
[117]
It joined additional employers to an unfair dismissal dispute that
was originally referred to conciliation against one employer.

The Labour Appeal Court disagreed with the decision of the Labour
Court.  It set aside the order of the Labour Court and dismissed

the employees’ joinder application.
[118]
The order of the Labour Appeal Court has the effect of non-suiting
the employees’ unfair dismissal claims, thus making
the
resolution of the labour dispute, which is the subject matter of this
application, ineffective and impractical through the
mechanisms
created by the LRA.
[143]
I have had the benefit of reading the
judgments prepared by my Colleagues, Cameron J (main judgment), Zondo
J (concurring judgment)
and Froneman J.  I concur in the
judgment of Froneman J.  Whilst I agree with the main and
concurring judgments regarding
the characterisation of the issues and
that leave to appeal should be granted, we differ on the
interpretation of section 191 and
on whether that section was
complied with.  The question raised requires a proper
interpretation and application of section
191, in the light of the
spirit, purport and objects of the Bill of Rights, and, in
particular, the right to fair labour practices
in section 23 and
access to courts in section 34 of the Constitution.  As this
judgment seeks to demonstrate, a proper construction
of section 191
yields a different conclusion to that reached by the Labour Appeal
Court, the main judgment and the concurring
judgment.
Background
facts and litigation history
[144]
The background facts are set out in the
main judgment and the concurring judgment.  I will only repeat
those that are relevant
for the purposes of this judgment.
[145]
This
matter originated as an unfair dismissal claim on behalf of
individual employees arising from a mass dismissal following
participation
in a strike at the shared premises of three engineering
companies, Steinmüller, Intervalve and BHR (the three
companies).
On behalf of the three companies the strike was
handled by their shared HR services.
[119]
Notably, the shared HR services of the three companies maintain a
single system of records in respect of their employees
working at
their shared premises.
[120]
During their employment certain employees among the individual
employees were transferred from one of the three companies
to
another, at different times, without termination of one employment
contract and the conclusion of a new contract, nor the cession
and
assignment of contractual obligations.
[121]
[146]
Throughout
the events that culminated in the dismissal of the individual
employees, in particular in effecting the dismissals, the
three
companies acted with a single voice.  The shared letter of
dismissal addressed to all employees participating in the
unprotected
strike action at the Pretoria Workshop bears the logos of Steinmüller
and Intervalve and is signed by the Managing
Director, Mr von
Neuberg, who is also the CEO of Bilfinger.  Notably, in the code
of conduct applicable to the three companies,
Mr von Neuberg refers
to the “Steinmüller Group of Companies” as including
Bilfinger, BHR, Intervalve and KOG.
[122]
[147]
Upon
receipt of the dismissal letter, NUMSA, on behalf of all its
dismissed members, referred an unfair labour dispute to the
Bargaining
Council for conciliation in terms of section 191, citing
Steinmüller as the employer party.  Conciliation was
attended
by the shared HR services of the three companies.  The
complaint that the individual employees were not all employed by
Steinmüller
was raised for the first time at conciliation by the
shared HR services.
[123]
Steinmüller’s attorney, who also acts on behalf of
Intervalve and BHR, furnished NUMSA’s attorneys with

documentary records drawn from the shared HR services and with lists
purporting to identify the correct employer of each of the
individual
employees.
[124]
The
dispute remained unresolved and the Bargaining Council issued a
certificate of non resolution.
[148]
In
August 2010 NUMSA filed a statement of claim in the Labour Court,
seeking an order declaring the dismissal of its members as
both
procedurally and substantively unfair and directing reinstatement and
payment of compensation plus costs.  Steinmüller
did not
file a statement of defence but filed an interlocutory application
raising an
in
limine
objection to the statement of claim.  The basis of the objection
was that the claimants had not pertinently alleged that Steinmüller

was the employer of the individual claimants.  On 30 August 2010
Steinmüller filed a notice for NUMSA to remove the cause
of
complaint.
[125]
It
threatened to bring an application for an order setting aside the
statement of claim as an irregular step and declaring
that the
statement of claim did not contain allegations necessary to sustain a
cause of action; alternatively, that it was vague
and
embarrassing.
[126]
[149]
In
October 2010 the claimants filed a notice to amend the statement of
claim followed by the amendment in which it was alleged that

Steinmüller was the employer and that it dismissed the
individual claimants.  In November 2010 the attorney acting on

behalf of Steinmüller provided NUMSA with copies of documents
setting out its position in relation to the individual claimants

represented by NUMSA.
[127]
[150]
On
the basis of this information, in March 2011 the claimants
successfully launched a joinder application in terms of rule 22(2)(a)

of the Rules of the Labour Court
[128]
to join Intervalve, BHR, Strategic HR, Eduardo and TQA.
[129]
The basis for the joinder of Intervalve and BHR included the fact
that these companies employed certain of the individual
claimants and
that this was sufficient to establish that they have a direct and
substantial interest in the matter.  An added
reason for the
joinder was that the operations, personnel, identities and other
characteristics of the three companies are so interwoven
that the
three companies have a parity of interest in relation to their
employees, including the individual claimants.
[151]
Intervalve
and BHR opposed the joinder application on the basis that, firstly,
the Labour Court lacked jurisdiction to entertain
an unfair dismissal
claim against them because the “condition precedent”,
that the matter first be conciliated before
being referred to
adjudication, was not met.  Differently put, they disputed that
the Labour Court had jurisdiction to entertain
an unfair dismissal
claim against the two companies if they were to be joined.
Secondly, they contended that NUMSA failed
to satisfy the requirement
that the parties it sought to join have a direct and substantial
interest in the subject matter of the
proceedings as required by rule
22.  In seeking to support these contentions, the opposing
affidavit deposed to by a director
of BHR accepted that these
companies form part of the same group of companies and have the same
shareholders and directors in common.
It explained however that
the companies are separate companies and are registered as such.  It
contended further that the
failure to refer the dispute against
Intervalve and BHR for conciliation was an insuperable obstacle to
their joinder.  Intervalve
and BHR denied that they had any
legal interest in the main claim because there was no claim before
the Labour Court that they
dismissed their employees unfairly.
The Labour Court’s order was set aside on appeal.
[130]
[152]
The
Labour Appeal Court held that the dispute between the parties, being
“one of dismissal on participation in a non-procedural

strike[,] . . .
must
,
firstly be referred to conciliation”.
[131]
It said:
“
NUMSA
as has been recorded earlier referred the unfair dismissal dispute
against Steinmüller both for conciliation and to the
Labour
Court
prima facie
in compliance with section 191.  NUMSA
did
refer
a dispute for conciliation
against Intervalve and BHR but this was done outside the prescribed
time limit and it was rejected by
the Bargaining Council on the basis
that NUMSA failed to show good cause as to why the referral should be
entertained.  In
the circumstances no dispute against Intervalve
and BHR was referred for conciliation.  Based on the
non-referral of the dispute
for conciliation and relying on the
judgment of this Court in
National Union
of Metalworkers of South Africa v Driveline Technologies (Pty) Ltd
(‘
Driveline
’),
Intervalve and BHR aver that the Labour Court has no jurisdiction to
entertain a dispute between NUMSA and them.
In
Driveline
,
Zondo AJP . . . with Mogoeng AJA . . . concurring held that:
‘
.
. . the wording of section 191(5) imposes the referral of a dismissal
dispute to conciliation as a precondition before such a
dispute can
either be arbitrated or referred to the Labour Court for
adjudication.’”
[132]
(Emphasis added and footnote omitted.)
[153]
The
Labour Appeal Court therefore concluded that “NUMSA failed to
comply with section 191(1) read with section 191(3) [of
the LRA] in
that, it failed to refer on time the dispute against Intervalve and
BHR to conciliation”.
[133]
It said that—
“
[i]n
the absence of conciliation, it is not entitled to refer its dispute
for adjudication to the Labour Court as provided in section
191(5).
The Labour Court does not have jurisdiction to entertain the dispute,
and as such it serves no purpose to consider
whether the application
for joinder has merit”.
[134]
Issue
[154]
The issue for consideration therefore
concerns compliance with section 191(1).  A determination of
this issue necessitates
a proper interpretation of section 191 of the
LRA.  However, before determining the meaning of section 191(1),
which must
be read with section 191(3), it is necessary to address
the importance of the conciliation process, the constitutional and
statutory
scheme and the proper approach to statutory interpretation.
Conciliation
process
[155]
It
is true that conciliation, under the auspices of the CCMA or a
bargaining council, is not intended as just another perfunctory
step
on the way to securing a licence for action.  The mechanism is a
process required by the LRA for the adjustment of competing
interests
and industrial peace.  In conciliating a dispute, the
conciliators must fulfil the primary goal of promoting labour
peace
by the effective resolution of labour disputes.  They must act
fairly and quickly, with minimum legal formalism.
[135]
However, the conciliators are constrained by certain
constitutional and statutory requirements.  When they apply the

provisions of the LRA they must interpret its provisions to give
effect to its primary object and in compliance with the
Constitution.
These are the constraints that must inform the
interpretation of section 191.
[156]
The
need to avoid “over-judicialising” issues and for speedy,
efficient and cost effective resolution of labour
disputes
during conciliation and arbitration captures the primary reason of
their proceedings under the LRA.
[136]
Although bargaining councils enjoy none of the status of a court of
law and have no judicial authority within the contemplation
of the
Constitution, the conciliation and arbitration proceedings must be
conducted in a manner consistent with the goal of the
LRA, the object
of the Bill of Rights and in accordance with the values of the
Constitution.
[137]
The
constitutional and statutory scheme
[157]
Section 23(1) of the Constitution provides
that “[e]veryone has the right to fair labour practices”.
Section 34
provides that “[e]veryone has the right to have any
dispute that can be resolved by the application of law decided in a
fair
public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum”.  Section
39(2) enjoins every court, tribunal or forum to promote the spirit,
purport and objects of the Bill of Rights, when interpreting
any
legislation.
[158]
Section 3 of the LRA provides that any
person applying the LRA must interpret its provisions: (a) to give
effect to its primary
objects; and (b) in compliance with the
Constitution and the public international law obligations of the
Republic.
[159]
The purpose of the LRA is—
“
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 27 of the Constitution;
(b)
to give effect to obligations incurred by the Republic as a member
state of the International Labour Organisation;
.
. .
(d)
to promote—
.
. .
(iv)
the effective resolution of labour disputes”.
[138]
[160]
A
bargaining council has the power to prevent and resolve labour
disputes and perform the dispute resolution function identified
by
section 51.
[139]
Section
51(3) provides:
“
If
a dispute is referred to a council in terms of this Act and any party
to that dispute is not a party to that council, the council
must
attempt to resolve that dispute––
(a)
through conciliation; and
(b)
if the dispute remains unresolved after
conciliation, the council must arbitrate the dispute if––
(i)
this Act requires arbitration and any party
to the dispute has requested that it be resolved through arbitration;
or
(ii)
all the parties to the dispute consent to
arbitration under the auspices of the counsel.”
[161]
Section 157 deals with the jurisdiction of
the Labour Court.  It reads, in relevant part:
“
(1)
Subject to the Constitution and section 173, and except where this
Act provides otherwise, the Labour Court has exclusive jurisdiction

in respect of all matters that elsewhere in terms of this Act or in
terms of any other law are to be determined by the Labour Court.
.
. .
(4)
(a) The Labour Court may refuse to determine any dispute, other than
an appeal or review before the Court, if the Court is not
satisfied
that an attempt has been made to resolve the dispute through
conciliation.”
[162]
Section 191, the section in issue,
provides, in relevant part:
“
(1)
(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; [or]
(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 which the employee became aware of the
act or occurrence.
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
relevant time limit in subsection (1) has expired.
.
. .
(3)
The employee must satisfy the council or the Commission that a copy
of the referral has been served on the employer.
.
. .
(5)
If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council
or the
Commission received the referral and the dispute remains unresolved—
.
. .
(b)
the employee may refer the dispute to the Labour Court for
adjudication.”  (Emphasis added.)
Proper
interpretive approach
[163]
While
grammar and dictionary meanings are the primary tools for statutory
interpretation, as opposed to being determinative tyrants,
context
bears great importance.  This was underscored by Schreiner JA in
Jaga
v Dönges
,
[140]
a decision often quoted with approval by this Court:
[141]
“
Certainly
no less important than the oft repeated statement that the words and
expressions used in a statute must be interpreted
according to their
ordinary meaning is the statement that they must be interpreted in
the light of their context.  But it
may be useful to stress two
points in relation to the application of this principle.  The
first is that ‘the context’,
as here used, is not limited
to the language of the rest of the statute regarded as throwing light
of a dictionary kind on the
part to be interpreted.  Often of
more importance is the matter of the statute, its apparent scope and
purpose, and, within
limits, its background.  The second point
is that the approach to the work of interpreting may be along either
of two lines.
Either one may split the inquiry into two parts
and concentrate, in the first instance, on finding out whether the
language to
be interpreted has or appears to have one clear ordinary
meaning, confining a consideration of the context only to cases where
the language appears to admit of more than one meaning; or one may
from the beginning consider the context and the language to be

interpreted together.”
[142]
[164]
This
Court has given approval to an interpretive approach that, “whilst
paying due regard to the language that has been used,
is ‘generous’
and ‘purposive’ and gives expression to the underlying
values of the Constitution”.
[143]
As such it is important to have regard to the stated purpose of the
LRA, in particular, the advancement of social justice
and labour
peace in the workplace by fulfilling the primary objects of that Act
which, among others, are: (a) to give effect to
and regulation of
fundamental rights and (b) to promote the effective resolution of
labour disputes.
[144]
What is more, section 191 should not be construed in isolation,
but in the context of the other provisions in the LRA
and the
Constitution.
[145]
[165]
The
starting point is the Constitution.  Section 39(2) bears
repeating.  It enjoins every court, tribunal or forum, when

interpreting any legislation to promote the spirit, purport and
objects of the Bill of Rights.  The interpretive process
envisaged in section 39(2) is not limited to what the text of the
legislative provision in question is principally capable of meaning

but what it should mean when read with the Constitution.
[146]
This Court has also said that “[c]onstitutional rights
conferred without express limitation should not be cut down
by
reading implicit limitations into them” and “when
legislative provisions limit or intrude upon those rights they
should
be interpreted in a manner least restrictive of the right if the text
is reasonably capable of bearing that meaning”.
[147]
The preferred interpretation should also not be unduly strained
beyond the text.
[148]
However, it must have regard to the constitutional rights in issue,
namely the rights to fair labour practices and access
to courts.
[166]
This
Court has confirmed that the correct approach is “whether there
has been substantial compliance, taking into account
the relevant
statutory provisions in particular and the legislative scheme as a
whole” or put differently, whether the steps
that were taken
were effective when measured against the object of the
Legislature.
[149]
The
Court emphasised that a narrowly textual and legalistic approach is
to be avoided.
[150]
In
AllPay
this Court endorsed the approach of substantial compliance with a
statutory provision.
[151]
Meaning
of section 191
[167]
Section
191(1) provides that “if there is a
dispute
about the fairness of a dismissal . . . the dismissed employee . . .
may refer the
dispute
in writing” to the CCMA or a bargaining council, as the case
may be, within 30 days of the dismissal, or if at a later date,

within 30 days of the employer making a final decision to dismiss or
uphold dismissal.
[152]
If the council or a commission certifies that the
dispute
remains unresolved or 30 days have passed since referral, the
employee may refer the dispute to the Labour Court for adjudication

in terms of section 191(5).  What is important is to cut to the
real dispute.
[153]
[168]
The
language of section 191(1) is plain and is not couched in peremptory
terms.  The section provides for the referral of the
dispute
.
The referral must be done within the prescribed time period.  An
employee may be permitted to refer the dispute after
the expiry of
the prescribed time if good cause is shown.  However, if the
dispute remains unresolved, the employee may refer
the dispute to the
Labour Court for adjudication.  The Labour Court may refuse to
determine any dispute if it is not satisfied
that an attempt has been
made to resolve the dispute through conciliation.
[154]
[169]
The
LRA, in section 213, defines “dispute” as “including
an alleged dispute”.  “[I]ssue in dispute
in
relation to a strike” is defined as “mean[ing] the
demand, the grievance, or
the
dispute that forms the subject matter of the strike
”.
[155]
Section 191(1) provides that if there is “a dispute” the
dismissed employee alleging an unfair labour practice
may refer the
dispute
.
[170]
It
needs to be stressed that the
dispute
that was referred to conciliation in this case was “the
dispute” that arose from the strike.  This was handled,
at
all times, by the shared HR services of the three companies.  It
is important to emphasise also that the
dispute
referred to the Labour Court for adjudication was the same dispute
that was conciliated.  The remarks of the Labour Appeal
Court in
Driveline
[156]
regarding the nature of the dispute contemplated in section 191(1)
are apposite:
“
The
Act makes provision for the resolution of various disputes in the
workplace by the employment of certain mechanisms in certain
fora
.
One of such disputes is the dispute that arises between an employee
or his union, on the one hand, and, an employer, on
the other, when
the employer dismisses the employee.  That dispute consists of
the employee side contending that the dismissal
is unfair whereas the
employer side contends it to be fair.  The Act calls such a
dispute a ‘dispute about the fairness
of a dismissal’.
This is to be found in section 191(1) where the subsection begins by
saying: ‘If there is a
dispute about the fairness of a
dismissal . . . .’
.
. . .  Whether a dispute will end up in arbitration or
adjudication it must first have been referred to conciliation before

it can be arbitrated or adjudicated.
.
. .
The
dispute remains the same dispute that was referred for conciliation
in terms of section 191(1) of the Act, namely, the
dispute about
the fairness of the dismissal.”
[157]
Was
section 191 complied with?
[171]
Section
191(3) must be read with section 191(1).  Subsection (3)
requires an employee to satisfy a bargaining council or the

Commission that a copy of the referral has been served on the
employer.
[158]
The
language used in this subsection appears to admit of more than one
meaning.  Of importance are the subject matter
of the statute,
its apparent scope and purpose.  Section 191(1) read with
section 191(3) must be construed and applied in
a manner least
restrictive of the primary object of the LRA, which includes the
promotion of “
the
effective resolution of the labour dispute
”.
[159]
[172]
The construction contended for by NUMSA, on
the one hand, is that section 191 was substantially complied
with when read in
the light of sections 23 and 34 of the
Constitution.  NUMSA therefore contended that the decision of
the Labour Appeal
Court should be set aside and that of the
Labour Court be reinstated.  The construction contended for by
Intervalve and BHR,
on the other hand, supporting the reasoning of
the Labour Appeal Court, in essence comes to this: where a single
dismissal dispute
involving more than one employer is timeously
referred and the employers concerned are aware of the referral and
conciliation,
each and every one of them must still of necessity have
been served and should be a party to conciliation.  It is
contended
that deviation from the above meaning is fatal.
[173]
The
Labour Appeal Court held that in the absence of conciliation of the
dispute which was belatedly referred, NUMSA was not entitled
to refer
its dispute against Intervalve and BHR to the Labour Court for
adjudication.  For this reasoning the Labour Appeal
Court relied
on
Driveline
.
[160]
The Labour Appeal Court held that the Labour Court lacked
jurisdiction to entertain the dispute.
[161]
This was because “section 191(5) imposes the referral of a
dismissal dispute to conciliation as a precondition
before such a
dispute can either be arbitrated or referred to the Labour Court for
adjudication”.
[162]
[174]
The salient facts of
Driveline
bear mentioning.  The case concerned an application for an
amendment of the applicants’ statement of claim.  In
their
referral notice, the individual appellants claimed that their
dismissal for operational requirements was unfair.  The

amendment, which was rejected by the Labour Court, sought to attack
the fairness of the dismissal on the basis that the dismissals
were
automatically unfair.  The employer contended that the
conciliation of the dispute concerning automatically unfair dismissal

was a jurisdictional precondition to a consideration of the matter by
the Labour Court.  It contended that the amendment sought
to
introduce a new dispute which had not been referred to conciliation
and that the Labour Court had no jurisdiction to adjudicate
it.
In rejecting the employer’s argument, the majority in
Driveline
correctly remarked:
“
The
[employer party’s] submission had as its basis the notion that
there are two disputes between the parties now, namely,
a dispute
concerning a dismissal for operational requirements and a dispute
concerning an allegedly automatically unfair dismissal.
.
. . [I]t is a fallacy to regard the proposed amendment as introducing
a new dispute.  To my mind, this approach is a result
of a
failure to appreciate the nature of the dispute between the parties,
the event giving rise to the dispute, and the cause of,
or the event
giving rise to the dispute and the grounds of each party’s case
to the dispute.
.
. .
The
dispute remains the same dispute that was referred for conciliation
in terms of section 191(1) of the Act, namely, the dispute
about the
fairness of the dismissal of the . . . appellants.
To
hold that the amendment . . . will introduce a new dispute altogether
would not only be illogical but would render the dispute
mechanisms
of the Act ineffective, unworkable and nugatory.”
[163]
[175]
The
construction of section 191 contended for by the three companies, and
sanctioned by the Labour Appeal Court, the main and concurring

judgments is stringent.  It fails to take into account that the
dispute, which the Labour Appeal Court said ought to have
been
referred timeously to conciliation, was the same dispute that was
already conciliated by the Bargaining Council.  The
construction
does not consider whether, regard being had to the relevant statutory
provisions, purpose and the legislative scheme
of the LRA as a whole,
there has been substantial compliance.  As correctly stated by
the Labour Court, it goes against the
grain of the LRA’s stated
aim – “the effective resolution of labour disputes”.
It also ignores the
fact that, despite Intervalve and BHR not having
been served with the first referral, the statutory goal of
conciliation, which
intends to have the parties attempting to resolve
the dispute, was achieved.  Notably, the Labour Appeal Court
accepted that
“more appropriately a single action is what was
required” instead of “separate actions”.
[164]
[176]
I
agree that conciliation requires the referral of a dispute and that
parties to the dispute should be granted the opportunity to
represent
themselves.
Driveline
confirms this position when it distils the components of a
dispute.
[165]
The
facts of this case are in conformity with this position.
Intervalve and BHR rely on the lack of initial service
and their
citation.  However, the three companies must have been aware of
the dispute.  I find it difficult to maintain
that with the
shared HR services and legal representation, Intervalve and BHR were
unaware of the referred dispute.  The three
companies’
argument regarding non-service is a technical one based on the formal
requirement to cite and serve employer companies
with the referral
form.  This, in my view, elevates form over substance.
[166]
[177]
In
ACDP
,
this Court cautioned against a narrowly textual and legalistic
approach:
“
A
narrowly textual and legalistic approach is to be avoided as Olivier
JA urged in
Weenen Transitional Local
Council v Van Dyk
:
‘
It
seems to me that the correct approach to the objection that the
appellant had failed to comply with the requirements of section
166
of the ordinance is to follow a common-sense approach by asking the
question whether the steps taken by the local authority
were
effective to bring about the exigibility of the claim measured
against the intention of the Legislature as ascertained from
the
language, scope and purpose of the enactment as a whole and the
statutory requirement in particular . . . .  Legalistic
debates
as to whether the enactment is peremptory (imperative, absolute,
mandatory, a categorical imperative) or merely directory;
whether
“shall” should be read as “may”;
whether
strict as opposed to substantial compliance is required
;
whether delegated legislation dealing with formal requirements are of
legislative or administrative nature, etc may be interesting,
but
seldom essential to the outcome of a real case before the courts.
They tell us what the outcome of the court’s
interpretation of
the particular enactment is; they cannot tell us how to interpret.
These debates have
a
posteriori
,
not
a
priori
significance.  The approach described above, identified as “.
. . a trend in interpretation away from strict legalistic
to the
substantive” by Van Dijkhorst J in
Ex
parte Mothuloe (Law Society, Transvaal, Intervening)
1996 (4) SA 1131
(T) at 1138D-E, seems to be the correct one and does
away with debates of secondary importance only.’”
[167]
(Citation omitted.)
[178]
In
AllPay
this Court echoed this:
“
Assessing
the materiality of compliance with legal requirements in our
administrative law is, fortunately, an exercise unencumbered
by
excessive formality.  It was not always so.  Formal
distinctions were drawn between ‘mandatory’ or
‘peremptory’
provisions on the one hand and ‘directory’
ones on the other, the former needing strict compliance on pain of
non-validity,
and the latter only substantial compliance or even
non-compliance.  That strict mechanical approach has been
discarded.
Although a number of factors need to be considered
in this kind of enquiry, the central element is to link the question
of compliance
to the purpose of the provision.  In this Court
O’Regan J succinctly put the question in [
ACDP
]
as being ‘whether what the applicant did constituted compliance
with the statutory provisions viewed in the light of their
purpose’.
This is not the same as asking whether compliance with the provision
will lead to a different result.”
[168]
(Emphasis added and footnotes omitted.)
[179]
In
my view, the steps taken by NUMSA and the individual claimants were
effective when measured against the object of the LRA.
[169]
The factors that the Labour Appeal Court should have considered
include, at the risk of repetition, that––
(a)
all the affected employees were dismissed for participation in the
same strike action and, importantly, were collectively dismissed

following collective disciplinary proceedings handled by the shared
HR services of the three companies;
(b)
identical letters of dismissal were prepared by the shared HR
services of the three companies and those who were re-employed,
were
re employed without distinction as to their employer;
(c)
both the shared HR services and the legal representative of the three
companies took part in conciliation of “the dispute”
and
were in possession of all pleadings and documents previously
delivered;
(d)
“the dispute” that was referred also involved Intervalve
and BHR;
(e)
Intervalve and BHR were represented in the joinder application by the
same attorney as Steinmüller, a further demonstration
of their
parity of interest in the underlying proceedings and of their
readiness to participate in them;
(f)
Intervalve and BHR have not expressed any interest in re-opening
conciliation; and
(g)
the three companies not only initiated proceedings which had the
effect of frustrating the effective resolution of the dismissal

dispute but also opposed every step taken by NUMSA towards that
resolution.
[170]
A
consideration of these factors links the question of compliance to
the purpose of section 191.
[180]
The
interpretation contended for by the three companies non-suits the
individual claimants.  This construction may have a chilling

effect on the stated objects of the LRA which include the promotion
of the effective resolution of labour disputes and the right
of
access to courts in section 34 of the Constitution.  The
restrictive and formalistic approach and the construction contended

for by the three companies undermines this context.  If the
approach and construction are accepted, it would mean that there

must, of necessity or inevitably, be another referral of the same
dispute which had already been conciliated.  This construction

would, to borrow the words used by the majority in
Driveline
,
“render the dispute mechanism of the Act ineffective,
unworkable and nugatory”.
[171]
It would also allow for a situation whereby employees, in a complex
working relationship created by the employers, are saddled
with an
undue burden of having to establish who their true employer is.
Such a situation, in effect, rewards an employer
who complicates the
working relationship.  It also has the effect of creating
unfairness in labour relations and limiting
access to courts.
This is untenable and it is manifestly unfair.
[181]
If the dispute has to be referred to
conciliation in respect of additional employers who were aware of the
referral and, in fact,
had an opportunity to participate in the
conciliation through the shared HR services and their legal
representative, that would
beg the questions of the nature of that
dispute which the majority in
Driveline
describes as follows:
“
If
it cannot be a dismissal dispute, what can it be said to be then?
If
the dispute is not a dismissal dispute, as it cannot be, under what
section of the Act would it fall to be referred to conciliation
if
[the] submission is that it must still be referred to conciliation
were to be accepted? . . .  Another question that would
arise
would be: . . . what event gave rise to the dispute?  The date
as to when the dispute arose would be required for the
purpose of
determining whether such dispute is being referred to conciliation
within such time as may be prescribed by the Act.
. . .
.
. . .  Another difficulty in the path of the referring party
would be that, if the council or the CCMA discovered, as I think
it
inevitably would, that the dispute being referred for conciliation
relates to the dismissal in respect of which it has already
dealt
with a dispute, it would hold itself to be
functus
officio
and refuse to conciliate the dispute because it would have already
issued the certificate referred to in section 191(5).
The
result of all this is that the approach we are urged by the
respondents to adopt . . . is one which would render the dispute

resolution mechanisms of the Act completely unworkable and
ineffective.  I can find no reason why we should adopt such an

approach when there is an approach which we can adopt which would
still leave the mechanisms of the Act operative and effective.”
[172]
If
the construction contended for by the three companies and endorsed by
the Labour Appeal Court, the main judgment and the
concurring
judgment, that NUMSA failed to refer timeously the dispute which has
already been conciliated, were to be accepted as
correct one would
ask the same questions here.
[182]
The majority in
Driveline
went on to say:
“
The
mere allegation of another or an additional reason for dismissal or
the mere allegation of another ground of alleged unfairness
does not
change one dismissal dispute into as many dismissal disputes as there
are alleged reasons for the dismissal or into as
many disputes as
there are grounds of alleged unfairness.  If this was not the
case, an employer could frustrate the entire
processing of such a
dispute by the mere device of keeping on changing the alleged reasons
for dismissal.”
[173]
I
agree. As is the case here, in
Driveline
the real dispute
between the parties had been conciliated.  Although Intervalve
and BHR were not served with the referral,
they participated in the
conciliation process through the shared HR services and their legal
representative.  It follows that
section 191 was substantially
complied with.  A proper reading of
Driveline
supports a
construction that favours a conclusion that there was substantial
compliance, particularly because “the dispute”
was
conciliated.
[183]
Had the Labour Appeal Court interpreted the
LRA in a purposive manner and paid due consideration to the facts of
this case and the
constitutional rights at play, it would have
concluded that there was substantial compliance with the relevant
provisions of that
Act.
[184]
Finally, to the extent it is necessary to
consider the question whether Intervalve and BHR had a direct and
substantial interest,
I make only a few remarks to support the
conclusion that these companies do have a direct and substantial
interest.
Direct
and substantial interest
[185]
The
Labour Appeal Court held that Intervalve and BHR have no direct and
substantial interest in the dispute between NUMSA and its
members on
the one hand and Steinmüller on the other.
[174]
I do not agree.  The director of BHR who deposed to the
opposing affidavit in the Labour Court acknowledged that the
three
companies form part of the same group of companies and have the same
shareholders and directors.  Moreover, the documents
which were
furnished to NUMSA by the shared attorney in November 2010
disclosed the individual claimants who were employed
by each one of
the three companies.
[175]
[186]
The test for joinder at common law is
governed by the following principles:
(a)
There must be a legal interest in the proceedings and not merely a
financial interest.
[176]
(b)
A party has a right to ask that someone be joined as a party “if
such a person has a joint proprietary interest with one
or either of
the existing parties to the proceedings or has a direct and
substantial interest in the Court’s order”
[177]
and “to avoid a multiplicity of actions and . . . a waste of
costs”.
[178]
[187]
This
Court in
ITAC
[179]
observed that whether it is in the interests of justice for a party
to intervene, and the question of direct and substantial interest,
is
important though not necessarily determinative.
[180]
It identified the following considerations in the interests of
justice enquiry—
(a)
“the stage at which the application for joinder is made”;
(b)
“whether the party has furnished adequate explanation for the
delay, if any, in seeking to be joined”;
(c)
“the nature of the relief or opposition the intervening party
puts up”; and
(d)
“[w]hether the intervention would materially prejudice the case
of any of the other parties to the litigation”.
[181]
[188]
The Labour Court was thus correct in its
reasoning:
“
[T]he
fact that an entity was the employer of a dismissed employee in
proceedings in which that dismissal is challenged quite obviously

constitutes a sufficient legal interest in the proceedings.
The
fact that BHR and Intervalve employed some of the dismissed employees
and that they had a hand – through the shared HR
Services –
in their dismissal must be a sufficient basis to justify their
joinder.
[NUMSA]
has gone further, however, to:
[1.]
explain how it came to pass that BHR and Intervalve were not
initially joined, and in particular how the conduct of [the three

companies] contributed to the lack of clarity as to the identity of
each individual applicant’s true employer; and to
[2.]
demonstrate that the underlying unfair dismissal claim constitutes a
single dispute in which [the three companies] acted jointly,
without
distinction as to
employee,
to dismiss the individual applicants by way of a single ‘process’
and for the same reason.”
[182]
[189]
So BHR and Intervalve do have a direct and
substantial interest in the dispute.  On the facts of this case,
the Labour Appeal
Court ought to have held that there was substantial
compliance with section 191, dismissed the application by the three
companies
and upheld the Labour Court’s decision regarding the
joinder of BHR and Intervalve.
Conclusion
[190]
I would have granted leave to appeal,
upheld the appeal, set aside the order of the Labour Appeal Court and
reinstated the order
of the Labour Court.
FRONEMAN
J (Madlanga J and Nkabinde J concurring):
[191]
It is because I agree with most of the main
and concurring judgments’ exposition of the law, but concur in
the judgment and
outcome proposed by my sister Nkabinde J, that I
feel compelled briefly to state my reasons for doing so.  I do
not read her
judgment as challenging much of the main contours of the
law as set out in those judgments.
[192]
In the main judgment Cameron J distils and
appears to accept four steps to evaluate whether there has been
substantial compliance
with a statutory requirement:
“
1.
What is the purpose of the statute as a whole, as well as the
specific provision at issue?
2.
What steps did the party take to comply with the provision?
Here, only the acts of the party seeking to comply are relevant.

The conduct of the other party is not.
3.
Did the steps taken achieve the purpose of the statute and of the
specific
provision,
even if the precise requirements were not met?
4.
Was there any practical prejudice because of non-compliance?”
[183]
[193]
The main judgment then deals with the
general and specific purposes of section 191:
“
The
purpose of section 191 is to ensure that, before parties to a
dismissal or unfair labour practice dispute resort to legal action,
a
prompt attempt is made to bring them together and resolve the issues
between them.  Resolving the issues early has benefits
not only
for the parties, who avoid conflict and cost, but also for the
broader public, which is served by the productive outputs
of
peaceable employment relationships.
.
. .  The general purpose of section 191 provides the background
against which the specific purpose of section 191(3) must
be
understood.  The subsection ensures that the employer party to a
dismissal or unfair labour practice dispute is informed
of the
referral.  The obvious objective is to enable the employer to
participate in the conciliation proceedings, and, if
they fail, to
gird itself for the conflict that may follow.”
[184]
[194]
So far so good.  But then it
continues:
“
But
is the purpose broadly to inform the human agents involved in a
dispute that a referral to conciliation has taken place?
Or is
there a narrower purpose?  Here the wording of section 191(3)
offers a significant pointer.  Service must be not
on an
associated, connected or implicated employer.
.
. .
This
emerges from the provision, which explicitly names the beneficiary of
the service requirement: “the employer”.
This makes
clear that a referral citing one employer does not embrace another,
uncited, employer.  The fact that the uncited
employer has
informal notice of the referral cannot make a difference.  The
objectives of service are both substantial and
formal.  Formal
service puts the recipient on notice that it is liable to the
consequences of enmeshment in the ensuing legal
process.  This
demands the directness of an arrow.  One cannot receive notice
of liability to legal process through oblique
or informal
acquaintance with it.”
[185]
[195]
It
is at this “narrowing” of the purpose that I must part
way.  It seems to me to tilt the scale too far towards

compliance with form rather than substance.
[186]
I cannot accept that a mistaken reference to a party in a referral
notice
[187]
must necessarily
spell non-compliance.  The concerns relating to the mistake can
adequately be met by the fourth requirement
in determining
substantial compliance, namely whether there was “any practical
prejudice because of non-compliance”.
[196]
Here, there was notice of the referral to
the other employers, albeit informally and, perhaps, in the mistaken
belief that they
all fell under Steinmüller as the real
employer.  There was no obstacle to attaining the purpose of
attempting conciliation,
except for a deliberate decision to stay
away as far as possible from conciliation by relying on, yes, a
formal technicality.
There was no “practical prejudice”,
only intentional obfuscation.
[197]
Finding for NUMSA here will not threaten
any fundamental principles of our law, be they those relating to the
recognition of separate
legal personality or to orderly dispute
resolution.  All it does is to discourage relying on formal
technicalities in order
to avoid dealing with the true merits of
underlying labour disputes.
For
the Applicant: P Kennedy SC and J Brickhill
instructed
by Cheadle Thompson & Haysom.
For
the First and Second Respondents: A J Freund SC and M Bishop
instructed
by Anton Bakker Inc.
[1]
Two further entities cited in the Labour Court proceedings,
Strategic Human Resources (Strategic HR) and TQA Trading Enterprises

(Pty) Ltd (TQA), are the fourth and fifth respondents in this Court,
but they
did
not oppose the initial joinder application or take part in the
subsequent appeal
proceedings.
[2]
National
Union of Metalworkers of South Africa v Steinmüller Africa
(Pty) Ltd and Others
[2012]
ZALCJHB 13;
[2012] 7 BLLR 733
(LC) (Labour Court judgment).
[3]
Intervalve
(Pty) Ltd and Another v National Union of Metalworkers of South
Africa
[2014]
ZALAC 29
(Labour Appeal Court judgment).
[4]
Steinmüller
produces boiler components and performs maintenance services,
Intervalve manufactures specialised gas valves,
and BHR manufactures
high pressure piping systems.
[5]
Bilfinger
holds the majority shareholding in Steinmüller (74.9%) and BHR
(74.9%) as well as 50% of Intervalve, which is a
black women-owned
company whose main place of business is not in Pretoria, but in
Bethal, Mpumalanga.
[6]
An
addendum to the standard employment contract bears the names of
Steinmüller, Intervalve and KOG Fabricators (Pty) Ltd
t/a
Bellows Africa, and refers to the “Steinmüller group of
companies”.  By signing the addendum, the employee

accepts that the “Steinmüller group of companies”
bargains at the national level at the Metal and Engineering

Industries Bargaining Council.  The description “Steinmüller
group of companies” also appears in a Code
of Conduct issued
by Mr von Neuberg, Chief Executive Officer of Bilfinger.
[7]
Documents
in the record indicate that Mr Abert was a director of Steinmüller,
and a “Management Brief” dated
11 March 2010 sent to
“all employees at the Pretoria workshop” designates him
“General Manager”.
[8]
66
of 1995.
[9]
Section
191(1) provides:
“
(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 which the employee became aware of the
act or occurrence.”
[10]
Section
191(2) provides that if the employee shows good cause at any time,
the bargaining council may permit the employee to refer
the dispute
after the relevant time limit in subsection (1) has expired.
[11]
The
application also sought to join Strategic HR and TQA (see above n
1), as well as Eduardo Construction (Pty) Ltd (Eduardo).
[12]
Rule
22 of the Rules of the Labour Court (“Joinder of parties,
intervention as applicant or respondent, amendment of citation
and
substitution of parties”) provides in relevant part:
“
(1)
The court may join any number of persons, whether jointly, jointly
and severally, separately, or in the alternative, as parties
in
proceedings, if the right to relief depends on the determination of
substantially the same question of law or facts.
(2)
(a) The court may, of its own motion or on application and on notice
to every other party, make an order joining any person
as a party in
the proceedings if the party to be joined has a substantial interest
in the subject matter of the proceedings.
(b)
When making an order in terms of paragraph (a), the court may give
such directions as to the further procedure in the proceedings
as it
deems fit, and may make an order as to costs.
.
. .
(6)
An application to join any person as a party to the proceedings or
to be substituted for an existing party must be accompanied
by
copies of all documents previously delivered, unless the person
concerned or that person’s representative is already
in
possession of those documents.
(7)
No joinder or substitution in terms of this rule will affect any
prior steps taken in the proceedings.”
[13]
Labour
Court judgment above n 2 at para 21.
[14]
Id
at paras 28-30 and 33-5, citing
Mokoena
and Others v Motor Component Industry (Pty) Ltd and Others
(2005) 26 ILJ 277 (LC) and
Selala
and Another v Rand Water
(2000) 21 ILJ 2102 (LC) and distinguishing
SA Commercial
Catering and Allied Workers Union v Entertainment Logistics Service
[2011] ZALCJHB 35; (2011) 32 ILJ 410 (LC) (
SACCAWU
).
[15]
The
other two respondents in the Labour Court, Strategic HR and TQA, did
not oppose the initial joinder application or take part
in the
appeal.
[16]
Labour
Appeal Court judgment above n 3 (per Waglay JP, with Francis AJA and
Dlodlo AJA concurring).
[17]
The
Court relied on
National
Union of Metalworkers of South Africa v Driveline Technologies (Pty)
Ltd
and
Another
[1999] ZALC 157
;
2000 (4) SA 645
(LAC) (
Driveline
),
in which Zondo AJP (Mogoeng AJA concurring) held at para 73 that
“the wording of section 191(5) imposes the referral
of a
dismissal dispute to conciliation as a precondition before such a
dispute can either be arbitrated or referred to the Labour
Court for
adjudication”, and distinguished
Selala
and
Mokoena
above n 14.
[18]
Labour
Appeal Court judgment above n 3 at para 21.
[19]
Section
39(2) of the Bill of Rights provides:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
[20]
Section
23(1) of the Bill of Rights provides that “[e]veryone has the
right to fair labour practices”, while section 23(2)(c)

provides that every worker has the right to strike.
[21]
Section
34 of the Bill of Rights provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[22]
The
directions of 25 August 2014 invited short written argument on
whether—
“
(a)
the employer’s entitlement to individual notice under
section 191(3)
of the
Labour Relations Act 66 of 1995
can be
waived;
(b)
if so, the dismissal notice constituted a waiver of that entitlement
by the first and second respondents;
(c)
the employer can be estopped from relying on its entitlement to
individual notice under
section 191(3)
;
(d)
if so, the dismissal notice is sufficient to estop the first and
second respondents from contending they were entitled to
individual
notice under
section 191(3)
; and
(e)
in the light of the pleadings, evidence and argument in the courts
below, it is appropriate for this Court to consider these

questions”.
[23]
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) (
NEHAWU
v UCT
)
at para 14.
[24]
Section 191(1)
, set out above n 9.  If no council has
jurisdiction, the provision empowers the employee to refer the
dispute to the Commission
for Conciliation, Mediation and
Arbitration (CCMA or Commission).  Since a council had
jurisdiction in this matter, the
exposition here omits the
provisions envisaging referral to the CCMA.
[25]
Section 191(1)(b).
[26]
Section 191(2).
[27]
Section 191(3).
Section 213
(“Definitions”)
provides that “serve” means “to send by registered
post, telegram, telex, telefax
or to deliver by hand”.
[28]
Section 191(4).
[29]
Section 191(5)
reads:
“
If
a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council
or the
Commission received the referral and the dispute remains unresolved—
(a)
the council or the Commission must arbitrate the dispute at the
request of the employee if—
(i)
the employee has alleged that the reason for dismissal is related to
the employee’s conduct or capacity, unless paragraph
(b)(iii)
applies;
(ii)
the employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the
employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms
of
section 197
or
197A
, unless the employee alleges that the contract of employment
was terminated for a reason contemplated in
section 187
;
(iii)
the employee does not know the reason for dismissal; or
(iv)
the dispute concerns an unfair labour practice; or
(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 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.”
[30]
Section 191(5)(b)(iii).
[31]
Section 191(11)(a).
[32]
Section 191(11)(b).
[33]
Above
n 17.
[34]
Section 187
sets out circumstances in which dismissals are
automatically unfair.
[35]
Driveline
above
n 17 at para 8.
[36]
Section
157(4)
reads:
“
(a)
The Labour Court may refuse to determine any dispute, other than an
appeal or review before the Court, if the Court is not
satisfied
that an attempt has been made to resolve the dispute through
conciliation.
(b)
A certificate issued by a commissioner or council stating that a
dispute remains unresolved is sufficient proof that an attempt
has
been made to resolve that dispute through conciliation.”
[37]
Driveline
above
n 17 at para 8.
[38]
Id
at p
ara
64.
[39]
Id
at p
aras
35-42 and
57.
[40]
Id
at p
aras
69-70.
[41]
Id
at para 73.
[42]
See
id at para 74.
[43]
See
[116] to [129].
[44]
See
Driveline
above
n 17 at para 8, where Conradie JA noted the odd location of
section
157(4).
[45]
In
the time-honoured terminology of pleadings, the power the provision
confers is dilatory and not in abatement.  See Harms
Civil
Procedure in the Superior Court
Service Issue 42 (2013) at B22.7, explaining the difference between
a plea in abatement (or plea in bar), which destroys a cause
of
action, and a dilatory plea, which merely postpones determination of
the cause of action.
[46]
This
was the specialist court created by the Industrial Conciliation
Amendment Act 94 of 1979.
[47]
Driveline
above
n 17 at para 8.
[48]
Id
at para 58.
[49]
See
[9].
[50]
Section
191(3).
[51]
Section
213, set out above n 27.
[52]
For
initiation of civil process in the Magistrates’ or Superior
Courts, a formal return of service evidenced by the sheriff
is
required.  See rule 9 of the Magistrates’ Court
Rules and rule 4 of the Uniform Rules of Court.
[53]
The
Labour Appeal Court was therefore right (at paras 15-22) to
distinguish the factual circumstances in
Mokoena
and
Selala
above
n 14 and to disapprove of the erroneous view, expressed in both
those judgments, that the Labour Court has a discretion
to condone
non-compliance with the conciliation requirement.  The Labour
Appeal Court noted that the party joined in
Mokoena
was a transferee who had taken over the going concern of another
business.  Judgment against the old business was therefore

effective against the transferee, who would be jointly and severally
liable for any claim.  The transferee therefore had
an interest
in the outcome of the dispute.  The joined party in
Selala
also had an interest in the outcome of the case, as he was a
co employee currently employed in a position the applicant

claimed should have been his.  By contrast,
SACCAWU
above
n 14 at para 10 rightly held that an applicant in the Labour Court
“cannot rely on a joinder in terms of rule 22 to
avoid its
obligations to comply with section 191 of the LRA”.
[54]
See
section 191(3).
[55]
See
[7].
[56]
Maharaj
and Others v Rampersad
1964 (4) SA 638
(A), applied in
African
Christian Democratic Party v Electoral Commission and Others
[2006]
ZACC 1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) (
ACDP
)
at para 24 and
AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency and
Others
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) at para
30.
[57]
Maharaj
id at 646C-E.
[58]
See
ACDP
above n 56 at para 25 and
Maharaj
id.
[59]
See
ACDP
id
at paras 31-3, where this Court found substantial compliance with
the Local Government:
Municipal Electoral Act 27 of 2000
, which
required a party who wished to contest an election as a ward
candidate to submit a deposit equal to a prescribed amount
to the
local office of the Electoral Commission.  The ACDP submitted a
deposit, accompanied by a list of local elections
that it intended
to challenge.  Though the ACDP had filed a party list for Cape
Town, the list submitted with the deposit
omitted Cape Town by
mistake.  Subsequently, the ACDP decided not to contest all the
elections included on the list, resulting
in an excess of payment.
When the Electoral Commission informed the ACDP that it did
not have payment for Cape Town, it
asked that the excess payment be
applied to Cape Town.  The Electoral Commission refused because
the request occurred after
the prescribed deadline.  This Court
found that the ACDP had substantially complied with the Act because
it had taken sufficient
action to accomplish the purpose of the Act
by notifying the Electoral Commission that it intended to contest
the Cape Town election
and paying a sufficient deposit.
Furthermore, there was no prejudice to any other party.
See
also
Du Plessis and Others v Southern Zululand Rural Licensing
Board and Another
1964 (4) SA 168
(D), in which there was
non-compliance with a requirement that a site plan be attached to an
application for a trading licence.
The Court found this to be
fatal, and not condonable by the licensing board, which therefore
did not have jurisdiction to grant
the licence.  But the
objectors had not shown prejudice, so the application to set aside
the licence was refused.
In
Shalala v Klerksdorp Town
Council and Another
1969 (1) SA 582
(T) a local councillor who
had been declared disqualified to contest local elections lodged and
served a challenge to his disqualification
within the 14-day period
the statute stipulated.  But his application was not heard
within this period, as the statute required,
because of the time
periods allowed by the rules of court and the exigencies of court
sittings.  The Court held that his
service and filing of his
application within the 14-day period was sufficient to fulfil the
purpose of the statute.  Moreover,
even if the applicant had
managed to have a hearing scheduled within the 14-day period, the
respondents still would have taken
more time to prepare their case.
There was no practical effect and therefore no prejudice
against the respondents.
And in
Kopel v Marshall and
Another
1981 (2) SA 521
(W) the nomination papers for an
electoral vacancy had been wrongly dropped into a “suggestions”
box, in the designated
office where the elections box was placed or
kept.  The papers were held to have been validly lodged,
because election officials
immediately realised the mistake, and the
effect of placing the papers in the wrong box was nil.
But
see
Weenen Transitional Local Council v Van Dyk
[2002] ZASCA
6
;
2002 (4) SA 653
(SCA), where the Supreme Court of Appeal required
strict compliance with statutory notice requirements for a local
authority
to impose rates, and the question of actual notice was not
considered.
[60]
Malokoane
v Multilateral Motor Vehicle Accidents Fund
[1998]
ZASCA 72; 1999 (1) SA 544 (SCA).
[61]
Id
at 549E.
[62]
Id
at 549G-550A.
[63]
Id
at 550A-D.
[64]
The
High Court judgment, which the Supreme Court of Appeal upheld,
distinguished between cases where notice is in fact given,
but is
defective in some way, and those in which notice is entirely
lacking.  The fact that notice was missing entirely
meant that
there could be no substantial compliance, regardless of whether the
MMF or its agents had actual knowledge.
See
Malokoane
v Multilateral Motor Vehicle Accidents Fund
[1999] JOL 1964
(T) at 7.
[65]
Blaauwberg
Meat Wholesalers CC v Anglo-Dutch Meats (Exports) Ltd
[2003] ZASCA 144
;
2004 (3) SA 160
(SCA) (
Blaauwberg
Meat
),
which approved and applied
Associated
Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint
and
Lacquers
v Smit
[2000] ZASCA 11; 2000 (2) SA 789 (SCA).
[66]
Blaauwberg
Meat
id at para 14.
[67]
Id
at paras 16-8.  The Court noted that, because of the wording of
section 15(1)
of the
Prescription Act 68 of 1969
, a misdescription
of the debtor from whom payment is claimed may not have the same
effect as a misdescription of the creditor
claiming payment.
[68]
See
Williams “Companies” in
LAWSA
2
ed (2005) vol 4(1) at paras 64 and 69.
[69]
In
Lipschitz
and Another NNO v Landmark Consolidated (Pty) Ltd
1979 (2) SA 482
(W) at 487C-488B, endorsed in
Southern
Witwatersrand Exploration Co Ltd v Bisichi Mining plc and Others
1998
(4) SA 767
(W) at 781-2, the Court rejected the proposition that
knowledge held by a director of one company became automatically
admissible
against another company on whose board the director also
served.  The Court further held:
“
[E]ven
if [the director] was the sole shareholder and governing director of
the defendant it does not follow that he is to be
identified with
the defendant.  He falls to be regarded as no more than an
agent of the defendant and cannot be regarded
as being the defendant
itself which in law is a distinct and separate legal entity.
[The director]’s statements and
actions are not
ipso
facto
and
per
se
to be regarded as being those of
the defendant.  Even in the case of a one man company the
company and its shareholder and/or
director are distinct and
separate entities.”
[70]
Williams
above n 68 at para 91.
[71]
Labour Court judgment above n 2 at para 41.
[72]
According
to
SA
Eagle Insurance Co Ltd v Bavuma
1985
(3) SA 42
(A) at 49G-H—
“
a
provision enacted for the special benefit of any individual or body
may be waived by that individual or body, provided that
no public
interests are involved.  It makes no difference that the
provision is couched in peremptory terms.”
[73]
Innes
CJ in
Laws
v Rutherfurd
1924 AD 261
at 263.  See also the minority judgment of Kroon AJ
in
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another
[2009] ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) at para
80.
[74]
Laws
v Rutherfurd
id.
[75]
Nienaber
JA in
Road
Accident Fund v Mothupi
[2000] ZASCA 27
;
2000 (4) SA 38
(SCA) at para 18.
[76]
Laws
v Rutherfurd
above n 73 at 263.
[77]
See
Rabie “Estoppel” in
LAWSA
2
ed (2005) vol 9 at para 652, an earlier edition of which was cited
and approved by Corbett JA in
Aris
Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd
1981 (2) SA 274
(A) at 291D-E.
[78]
Judgment
of Nkabinde J at [176] to [180].
[79]
Id.
[80]
See
Food
and Allied Workers Union v Ngcobo NO and Another
[2013] ZACC 36
;
2014 (1) SA 32
(CC);
2013 (12) BCLR 1343
(CC),
countenancing a delictual claim by dismissed employees against their
union for its negligent failure to prosecute their
unfair dismissal
claim.
[81]
See
South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC);
2000 (8) BCLR 886
(CC)
at para 51, citing
National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A) at 739 and
De
Beers Consolidated Mines Ltd v National Union of Mineworkers and
Another
[1998] 12 BLLR 1201
(LAC) at 1208B-C.
[82]
66
of 1995.
Section 191(1)
read with (4) provides that, if there
is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute
to a Bargaining Council if the
parties fall within the registered scope of a Bargaining Council or
to the CCMA, when the parties
do not fall within the registered
scope of a Bargaining Council, for conciliation.
[83]
This
provision is quoted in para 111 below.
[84]
See
para 111 below.
[85]
Huletts
South African Refineries Ltd v South African Railways and Harbours
1945 NPD 413
(
Huletts
).
[86]
Id
at 419.
[87]
1949
(1) SA 501 (W).
[88]
Id
at 507.
[89]
Durban
City Council v Minister of Labour and Another
1953 (3) SA 708 (N).
[90]
36
of 1937.
[91]
Durban
City Council
above
n 89 at 712A-B.
[92]
Estate
Bodasing v Additional Magistrate, Durban and Another
1957 (3) SA 176
(D).
[93]
Eskom
v Regional Director, Department of Manpower and Others
1990 (4) SA 362
(C) (
Eskom
).
[94]
Above
n 92 at 180H.
[95]
Above
n 93 at 369G-H.
[96]
Black
Allied Workers Union and Others v Palm Beach Hotel
(1988)
9 ILJ 1016 (IC).
[97]
Black
Allied Workers Union and Others v Asoka Hotel
(1989) 10 ILJ 167 (IC).
[98]
Black
Allied Workers Union and Others v Edward Hotel
(1989) 10 ILJ 357 (IC).
[99]
Black
Allied Workers Union and Others v Prestige Hotels CC t/a Blue Waters
Hotel
(1993) 14 ILJ 963 (LAC).
[100]
28
of 1956.
[101]
Above
n 96.
[102]
Above
n 97.
[103]
Above
n 98.
[104]
Above
n 99.
[105]
See
for example,
sections 9(4)
,
26
(14),
67
(3)(b),
68
(1)(a) and (b),
69
(11),
77
(2),
157
,
158
(1)(a)(iii),
158
(1)(b),
158
(1)(c),
158
(1)(e)
and
158
(1)(g)-(j) of the LRA.  The position is the same with
regard to the jurisdiction of the CCMA.
[106]
Section
12(1)(a) and (b) of the Industrial Conciliation Act, 1924, read:
“
It
shall be unlawful for any employer, employers’ organization,
trade union or other person to declare any strike or lock-out
until—
(a)
when there is an industrial council the matter giving occasion
therefor shall have been submitted to, considered and reported
on by
such industrial council;
(b)
where there is no industrial council and the matter giving occasion
therefor is one upon which a conciliation board may be
appointed, it
shall have been submitted to, considered and reported on by a
conciliation board.
and
until any further period stipulated in any agreement between the
parties as a period within which a strike or lock-out shall
not be
declared shall have elapsed.”
[107]
36
of 1937.
[108]
28
of 1956.
[109]
Marievale
Consolidated Mines v President of the Industrial Court and Others
1986 (2) SA 485
(T) at 494; (1986) 7 ILJ 152 (T) at 161.
[110]
One
of the conditions for a strike or lock-out to be a protected strike
or lock-out is that “the issue in dispute”
must have
been referred to a bargaining council or to the CCMA for
conciliation and a certificate of non resolution should
have
been issued or a period of 30 days should have lapsed since the
receipt of the referral.  Section 64(3) then provides:
“
The
requirements of subsection (1) do not apply to a strike or a
lock-out if—
(a)
the parties to the dispute are members of a council, and the dispute
has been dealt with by that council in accordance with
its
constitution;
(b)
the strike or lock-out conforms with the procedures in a collective
agreement;
(c)
the employees strike in response to a lock-out by their employer
that does not comply with the provisions of this Chapter;
(d)
the employer locks out its employees in response to their taking
part in a strike that does not conform with the provisions
of this
Chapter; or
(e)
the employer fails to comply with the requirements of subsections
(4) and (5).”
[111]
Section
46(6) of the 1956 Act read:
“
Notwithstanding
anything to the contrary in this section contained whenever there is
no industrial council having jurisdiction
in respect of a dispute
referred to in
subsection (2)
,
the parties to the dispute may agree to report to the
Director-General that they are satisfied that any conciliation board
which may be established will not be able to settle the dispute and
whether they have agreed upon the arbitrator or the arbitrators
and
the umpire, or to the arbitration being conducted by the Industrial
Court.”
[112]
(1995)
16 ILJ 278.  This Explanatory Memorandum has been used by this
Court to interpret the LRA.  See
Chirwa
v Transnet Limited and Others
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at para
48.
[113]
Explanatory
Memorandum at 327.
[114]
ILO
Convention No 151.
[115]
Freedom
of Association Committee cases (report 187/1978, November 1978).
[116]
Above n 8.
[117]
Above
n 2.
[118]
Above
n 3.
[119]
Labour
Court judgment above n 2 at para 5.  Their shared services
include: payroll administration; purchasing of materials;
quality
control; heat treatment; and, significantly, HR services.
[120]
Labour
Appeal Court judgment above n 3 at para 7 and Labour Court judgment
id at para 15.3.
[121]
Save
for denying that such transfers constituted “internal
redeployment”, Steinmüller provided no further answers
on
the issues.
[122]
Labour
Court judgment above n 2 at para 15.7.
[123]
Labour
Appeal Court judgment above n 3 at para 2 and Labour Court judgment
id at para 7.  Despite its objection, Steinmüller
did not
furnish documentation to indicate the identity of the employer of
each individual employee.  This was despite the
fact that it
had, at all material stages, been in exclusive possession of the
records.
[124]
Labour
Court judgment id at para 8.
[125]
The
first cause of complaint was the failure to allege material facts
necessary to establish the jurisdiction of the Labour Court
and the
second cause of complaint was the failure to allege that the
relevant members were employed by Steinmüller.
[126]
It
appears that the threatened application was in the end lodged and
was still pending when the joinder application was determined
by the
Labour Court.
[127]
The
documents disclosed that Steinmüller had no records of 22
persons identified in the list; 45 of the employees were employed
by
Intervalve; 2 of the employees were employed by BHR; 24 of the
employees were employed by itself; and 6 of the employees were

employed by labour brokers, including Strategic HR and TQA.
[128]
Rule
22(2) is set out above n 12.
[129]
Strategic HR and TQA did not oppose the joinder application.
[130]
The
order of the Labour Appeal Court reads:
“
The
appeal succeeds with no order as to costs.
The
order of the Labour Court is set aside and substituted with the
following:
The application is dismissed with no order as to
costs.
”
[131]
Labour
Appeal Court judgment above n 3 at para 12.  Emphasis added.
[132]
Id at para 14.
[133]
Id at para 24.
[134]
Id.
[135]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] ZACC 22
;
2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC) (
Sidumo
)
at para 85.
[136]
O’Regan
J in
Sidumo
id at para 125 referred to Baxter
Administrative
Law
(Juta & Co Ltd, Cape Town 1984) at 244-5.  Although this
source relates to the administrative law context, the sentiments

expressed apply with equal force to the role played by tribunals
such as the CCMA in the modern administrative state, which the

majority in
Sidumo
said performs an administrative function.  See also Hoexter
Administrative
Law in South Africa
(Juta & Co Ltd, Cape Town 2007) at 52-3 and Wade and
Forsyth
Administrative
Law
8 ed (OUP, Oxford 2000) at 886, as cited in
Sidumo
id.
[137]
See
Brassey
Employment
and Labour Law: Commentary on the
Labour Relations Act
(Juta
& Co Ltd, Cape Town 2006) vol 3 at A7–1-2, as
cited in
Sidumo
id
at para 86.  See also
Sidumo
id at paras 149-52.
[138]
Section
1.
[139]
As
established under
section 27
and in terms of the powers conferred by
section 28.
[140]
Jaga
v Dönges, NO and Another; Bhana v Dönges, NO and Another
1950 (4) SA 653
(A) (
Jaga
v Dӧnges
).
[141]
See,
for example,
Du
Toit v Minister for Safety and Security and Another
[2009] ZACC 22
;
2009 (6) SA 128
(CC);
2009 (12) BCLR 1171
(CC) at
para 37;
Bertie
Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at
para 21; and
South
African Police Service v Public Servants Association
[2006] ZACC 18
;
2007 (3) SA 521
(CC);
[2007] 5 BLLR 383
(CC) at para
17.
[142]
Jaga
v
Dӧnges
above n 140 at 662G-H.
[143]
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para
9.  See also
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
46.
[144]
At [159].
[145]
See
South
African Police Service v Police and Prisons Civil Rights Union and
Another
[2011]
ZACC 21
;
2011 (6) SA 1
(CC);
2011 (9) BCLR 992
(CC) at para 30.
[146]
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2000 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
)
at paras 21-6.
[147]
S
v Zuma
and
Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 15 and
SATAWU
and Others v Moloto and Another NNO
[2012]
ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC) at para 44,
referring, with approval, to
Hyundai
id at paras 22-3.  See also
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC)
(
Wary Holdings
)
at paras 46-7 and
NEHAWU
v UCT
above n 23 at para 39.
[148]
Hyundai
above n 146 at paras 24-5.
[149]
Liebenberg
NO and Others v Bergrivier Municipality
[2013] ZACC 16
;
2013 (5) SA 246
(CC);
2013 (8) BCLR 863
(CC) at para
26.
[150]
ACDP
above n 56 at para 25.
[151]
AllPay
above n 56 at para 30.  Prior to
AllPay
the Supreme Court of Appeal endorsed this approach in
Weenen
Transitional Local Council v Van Dyk
above
n 59 at para 13.
[152]
Emphasis
added.
[153]
The
Labour Appeal Court illustrated this in
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others
[1998] ZALAC 23
; (1) (1998) 19 ILJ 260 (LAC) at 265A-H and
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Construction
Building & Allied Workers Union (2)
(1997) 18 ILJ 671 (LAC) at 677E-678C.
[154]
See
[161].
[155]
Emphasis
added.
[156]
Driveline
above n 17.
[157]
Id
at paras 37-8 and 42.
[158]
Section 191(3)
is couched in similar terms to
section 51(2)(c)
of
the LRA.
[159]
Emphasis
added.
[160]
Driveline
above n 17 at para 46
.
[161]
Labour Appeal Court judgment above n 3 at para 24.
[162]
Driveline
above n 17 at para 73.
[163]
Id at paras 34-5 and 42-3.
[164]
Labour Appeal Court judgment above n 3 at para 26.
[165]
Above
n 17 at paras 36-7.
[166]
See
in this regard
Nabolisa
v S
[2013] ZACC 17
;
2013 (8) BCLR 964
(CC) at para 33.
[167]
ACDP
above n 56 at para 25.
[168]
AllPay
above n 56.
[169]
See
ACDP
above n 56 at para 25.
[170]
By
way of examples:
(a)
After the issuance of the certificate of
non-resolution, Steinmüller applied to the Labour Court for
review and setting aside
the certificate of non-resolution and
sought certain consequential relief.
(b)
After the statement of claim was lodged in
the Labour Court, Steinmüller—
(i)
did not file a statement of defence but an
interlocutory application raising an
in
limine
objection to the statement of
claim;
(ii)
filed notice to cause removal of certain
complaints; and
(iii)
threatened to bring an application, which
it ultimately lodged, to set aside the statement of claim as an
irregular step and declare
that the statement lacks averments to
sustain a cause of action, alternatively, that it was vague and
embarrassing.
(c)
Intervalve and BHR opposed the attempt to
have the dispute against them conciliated.
(d)
The three companies opposed the joinder
application on a ground which, if legally tenable, would bring an
end to the matter without
the dismissal dispute being effectively
adjudicated.
[171]
Driveline
above n 17 at para 43.
[172]
Id
at paras 44-6.
[173]
Id
at para 48.
[174]
Labour
Appeal Court judgment above n 3 at para 25.
[175]
See
above n 127.
[176]
See
Hartland
Implemente (Edms) Bpk v Enal Eiendomme BK
en
Andere
2002 (3) SA 653
(NC) at 663E-H.
[177]
Harding
v Basson and Another
1995 (4) SA 499
(C) at 501C.
[178]
Id
at 501I.
[179]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
).
[180]
Id
at paras 11-2.
[181]
Id
at para 12.
[182]
Labour
Court judgment above n 2 at paras 21-3.
[183]
At
[45].
[184]
At [46] to [47].
[185]
At
[48] and [53].
[186]
See
Nkabinde J’s judgment at [177].
[187]
Or
other kinds of notices and legal documents.  I would thus
hesitate to endorse the Supreme Court of Appeal decisions referred

to in paragraphs [49] to [51] of the main judgment in support of the
outcome here.