CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 29/18
In the matter between:
KARIN STEENKAMP First Applicants
FURTHER 1817 APPLICANTS 2nd to 1818th Applicants
and
EDCON LIMITED Respondent
Neutral citation: Steenkamp v Edcon Limited [2019] ZACC 17
Coram: Mogoeng CJ, Basson AJ , Cameron J , Dlodlo AJ, Froneman J ,
Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Judgment: Basson AJ (unanimous)
Heard on: 14 November 2018
Decided on: 30 April 2019
Summary: Labour Relations Act 66 of 1995 — dismissal for operation al
requirements — application in terms of section 189A(13) brought
outside of time limits — condonation refused — failed legal
strategy alone not sufficient to show good cause — labour
matters are expeditious in nature — section 189A(13)(d)
compensation remedy not a stand -alone remedy and dependent
on the inappropriateness of remedies (a)-(c)
2
ORDER
On appeal from the Labour Appeal Court:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.
JUDGMENT
BASSON AJ (Mogoeng CJ , Cameron J , Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron J concurring):
Introduction
[1] This is an application for leave to appeal against the judgment of the
Labour Appeal Court refusing the applicants condonation for the late launching of an
application in terms of section 189A(13) of the Labour Relations Act 1 (LRA),
challenging the procedural fairness of their retrenchment. It is the sequel to protracted
litigation between the parties that came before this Court in Steenkamp v Edcon.2 In a
majority judgment, this Court found against the applicants and held that a dismissal
pursuant to notices issued in breach of section 189A(8) of the LRA does not result in
the invalidity of the dismissal.
[2] Undeterred by this setback, the applicants renewed their quest and referred a
claim in terms of section 189A(13) of the LRA to the Labour Court , now claiming
1 66 of 1995.
2 Steenkamp v Edcon Ltd [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC) (Steenkamp I).
BASSON AJ
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compensation in terms of section 189A(13)(d) on the basis that their retrenchments
were procedurally unfair.
[3] Because the applicants’ referrals in terms of section 189A(13) were out of time,
they applied for condonation. The Labour Court granted condonation. 3 On appeal,
the Labour Appeal Court overturned the Labour Court’s decision to grant condonation
and dismissed the application for condonation with costs.4
Parties
[4] The first applicant is Ms Karin Steenkamp. She and the further 1817 applicants
all claim that they were unfairly retrenched by the respondent. They fall into different
categories depending on how they were dealt with during the retrenchment process or
what process they followed after their dismissals.5
[5] The application is opposed by Edcon Limited (Edcon), the erstwhile employer.
Background
[6] Edcon initially employed approximately 40 000 staff in 1 300 outlets across the
country. Edcon fell on hard times and in April 2013 it commenced a process of
restructuring for operational requirements. Approximately 3 000 employees were
retrenched between 2013 and 201 5. The 1818 applicants in this matter formed part of
this group. Because of the size of the workforce and the scale of the proposed
retrenchments, section 189A of the LRA applied to the dismissals. 6 The retrenchment
3 Karin Steenkamp v Edcon Ltd [2017] ZALCJHB 487 (Steenkamp Labour Court judgment).
4 Edcon Ltd v Karin Steenkamp ZALAC 81; (2018) 39 ILJ 531 (LAC) (Edcon).
5 Group 1 consists of employees who were not dismissed but elected to take voluntary retrenchment p ackages.
Some also took early retirement. Group 2 employees were retrenched pursuant to a section 189A process.
Group 3 consists of Steenkamp and others who were dismissed alleging that section 189A had not been
complied with. Group 4 consists of misce llaneous employees (the parties were in agreement that this g roup was
not before court) and Group 5 consists of employees who were retrenched but subsequently re -employed.
6 Section 189A(1) headed “Dismissals based on operational requirements by employers with more than
50 employees” defines a large-scale dismissal as follows:
“(1) This section applies to employers employing more than 50 employees if—
BASSON AJ
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process commenced with Edcon issuing written notices in terms o f section 189(3) of
the LRA. 7 In terms of these notices the employees were informed that Edcon was
contemplating to dismiss for operational requirements. They were also invited to take
part in a consultation process in terms of the LRA.
(a) the employer contemplates dismi ssing by reason of the employer’ s
operational requirements, at least—
(i) 10 employees, if the employer employs up to 200 employees;
(ii) 20 employees, if the employer employs more than 200, but not
more than 300, employees;
(iii) 30 employees, if the employer employs more than 300, but not
more than 400, employees;
(iv) 40 employees, if the employer employs more than 400, but not
more than 500, employees; or
(iv) 50 employees, if the employer employs more than 500 employees;
or
(b) the number of employees that the employer contemplates dismissing
together with the number of employees that have been dism issed by reason
of the employer’ s operational requirements in the 12 months prior to the
employer issuing a notice in terms of section 189(3), is equal to or exceeds
the relevant number specified in paragraph (a).”
7 This section sets out what must be contained in the notice:
“(3) The employer must issue a written notice inviting the other consulting party to
consult with it and disclose in writing all relevant information, including, but not
limited to—
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing the
dismissals, and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories in
which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely to take
effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to the employees likely to
be dismissed;
(h) the possibi lity of the future re -employment of the employees who are
dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for reasons based
on its operational requirements in the preceding 12 months.”
BASSON AJ
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[7] Section 189A of the LRA provides for the appointment of a facilitator. The
parties may agree to appoint a facilitator 8 or, if they cannot agree, either the employer
or a representative of a registered trade union may request the appointment of a
facilitator.9 Once appointed, the parties will engage in a join t consensus-seeking
process. Where a facilitator has been appointed, the employer is precluded in terms of
section 189 A(7) of the LRA from giving notice to terminate the contracts of
employment, unless a 60-day period from the date on which notice was given in terms
of section 189(3) of the LRA has lapsed.
[8] If a facilitator has not been appointed, section 189A(8) of the LRA precludes
the employer from issuing dismissal notices in accordan ce with sectio n 37 of the
Basic Conditions of Employment Act 10 for a period of 30 days from the date of the
giving of the section 189(3) notice . Once the period of 30 days has lapsed, the
employer must wait for the periods provided for in section 64(1) of the LRA to lapse
before it may issue the dismissal notices .11 A party to the consultation process is
likewise precluded from referring a dispute to a bargaining council or the Co mmission
8 Section 189A(4).
9 Section 189A(3).
10 75 of 1997.
11 Section 189A(8) provides as follows:
“If a facilitator is not appointed—
(a) a party may not refer a dispute to a council or the Commission unless a
period of 30 days has lapsed from the date on which notice wa s given in
terms of section 189(3); and
(b) once the periods mentioned in section 64(1)(a) have elapsed—
(i) the employer may give notice to terminate the contracts of
employment in accordance with section 37(1) of the Basic
Conditions of Employment Act; and
(ii) a registered trade union or the employees who have received notice
of termination may—
(aa) give notice of a strike in terms of section 64(1) (b) or
(d); or
(bb) refer a dispute concerning whether there is a fair
reason for the dismissal to the L abour Court in terms of
section 191(11).”
BASSON AJ
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for Conciliation, Mediation and Arbitration (CCMA) before the lapse of this period of
time.
[9] It is common cause that no facilitator was appointed. Section 189A(8) of the
LRA was therefore applicable and Edcon was precluded from issuing notices of
dismissal before the lapse of the 30 -day period. Edcon nonetheless issued dismissal
notices prior to the lapse of the time periods provided for in section 189A(8).
Litigation history
[10] Despite the availability of a statutory remedy in terms of section 189A(13) of
the LRA to approach the Labour Court on an expedited basis to compel Edcon to
comply with a fair procedure or to interdict or restrain it from dismissing them before
having complied with a fair procedure, the applicants elected not to do so. They also
elected neither to resort to a retaliatory strike action in terms of section
189A(8)(b)(ii)(aa) of the LRA , nor did they elect to refer a dispute about their unfair
dismissals to the CCMA in terms of section 191(1)(a) of the LRA. 12 The applicants
therefore placed no reliance on a claim for unfair dismissal in terms of the LRA on the
basis of procedural and substantive unfairness.
[11] Instead, the applicants elected to refer a dispute to the Labour Court for an
order of reinstatement challenging the validity of their dismissals on the narrow basis
of Edcon’s non-compliance with the statutory notice periods under section 189A(2)(a)
and (8) of the LRA. They relied on two earlier judgments of the Labour Appeal Court
12 Section 191(1) headed “Disputes about unfair dismissals and unfair labour practices” provides:
“(a) If there is a dispute about the fai rness 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.”
BASSON AJ
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in De Beers13 and Revan14 where the contention was upheld that a dismissal on a short
notice as prescribed in terms section 189A, is invalid and of no force and effect.15
[12] The Labour Appeal Court, sitting as a court of first instance, reconsidered what
colloquially became known as the “ De Beers principle” and concluded that the two
earlier decisions in De Beers and Revan were “obviously wrong” and that the
dismissals were not invalid.16
[13] Dissatisfied with the decision of the L abour Appeal Court, the applicants
sought leave to appeal to th is Court in Steenkamp I . They challenged the
Labour Appeal Court’s decision, restating their reliance on the De Beers principle that
the failure to comply with prescribed procedures in section 189A(8) rendered the
dismissals invalid and of no force and effect.
[14] The majority in Steenkamp I agreed with the Labour Appeal Court and held
that dismissals pursuant to the non -compliance with the time periods prescribed in
section 189A(8) of the LRA were not invalid.17 This Court, however, recognised that
its judgment did not necessarily mean that this was the end of the road for the
applicants:
“Until the decision of this Court, the employees acted on the strength of decisions of
the Labour Court and Labour Appeal Court whose effect was that in this type of case
it was open to them not to use the dispute reso lution mechanisms of the LRA and not
to seek remedies provided for in s ection 189A, but instead to simply seek orders
declaring their dismissals invalid. It is arguably open to them to seek condonation
13 De Beers Group Services (Pty) Ltd v National Union of Mineworkers [2010] ZALAC 26; (2011) 32 ILJ 1293
(LAC) (De Beers).
14 Revan Civil Engineering Contractors v National Union of Mineworkers (2012) 33 ILJ 1846 (LAC) (Revan).
15 The Labour Appeal Court in De Beers above n 13 at para 36 held:
“In short, if the employer fails to comply with the mandatory requirement of consultation in
terms of section 189(2) and moves to terminate the employment in breach of these pr ovisions,
then the dismissal must be considered to be invalid and accordingly of no force and effect .”
16 Edcon v Steenkamp [2015] ZALAC 2; 2015 (4) SA 247 (LAC) at para 57.
17 Steenkamp I above n 2 at para 188.
BASSON AJ
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and pursue remedies under the LRA. Obviously, Edcon would be entitled to oppose
that.”18
Labour Court
[15] Following their setback and within 30 days of the judgment in Steenkamp I, the
applicants reinvented their case. They launched an application in the Labour Court in
terms of section 189A(13) of the LRA , now claiming 12 months ’ compensation in
terms of paragraph (d) on the basis that Edcon did not comply with the peremptory
provisions of section 189A which resulted in their procedurally unfair dismissals.
[16] Because the application in terms of section 189A(13) was not brought within
the prescribed 30 day time period in section 189A(17)(a), they applied for
condonation in terms of section 189A(17)(b) of the LRA. 19 The length of the delay
varies between 10 months to two and a half years because the applicants were not all
dismissed at the same time.
[17] Before the Labour Court the applicants explained that the reason for the delay
was that they had pursued an overturned legal strategy. The Labour Court accepted
that the applicants’ reliance on the De Beers principle provided a plausible
explanation as to why they did not pursue the section 189A( 13) application from the
outset. The Labour Court reasoned that it would be grossly unjust to bar the
applicants from pursuing a remedy which was competent and more favourable to them
at the time, only later to be told by this Court that the remedy is incompetent. Further,
it held that this constituted a significant factor on why the applicants should be
permitted to pursue the less favourable remedy even at a later stage.
18 Id at para 193.
19 Section 189A(17) provides:
“(a) An application in terms of subsection (13) must be brought not later than 30 days
after the employer has given notice to terminate the employee’s services or, if notice
is not given, the date on which the employees are dismissed.
(b) The Labour Court may, on good cause shown condone a failure to comply with the
time limit mentioned in paragraph (a).”
BASSON AJ
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[18] The Labour Court granted condonation and held that, should the applicants be
successful in their procedural unfairness claim, they would at least be entitled to relief
under section 189A(13)(d), if relief in terms of paragraphs (a)-(c) is not appropriate.
[19] Aggrieved by this outcome, Edcon approached the Labour Appeal Court. The
issue for consideration was whether the Labour Court correctly granted condonation
after the expiry of the prescribed 30 -day period in terms of section 189A(13). The
Labour Appeal Court upheld the appeal , stating that the application by the applicants
was “fatally flawed and the judgment a quo in error”, principally on the basis that the
Labour Court misconceived the purpose and functioning of section 189A(13) of the
LRA.20
[20] In overturning the Labour Court’s decision on condonation, the
Labour Appeal Court further expressed the view that a “failed legal strategy is doom”
and cannot form the basis of a condonation application where an application in terms
of section 189A(13) was filed years out of time.21
In this Court
Issues
[21] The pertinent issues before this Court are: first, whether the Labour Appeal
Court was correct in overturning the decision of the Labour Court granting
condonation to the applicants, in circumstances wher e they launched their
procedurally unfair dismissal claim years outside of the 30 -day statutorily prescribed
time period and where the cause of action initially relied upon was found to be
inappropriate by this Court in Steenkamp I, and s econd, whether com pensation for
procedural unfairness can be claimed as a self-standing remedy in the context of large-
scale retrenchments in terms of section 189A(13)(d) of the LRA.
20 Edcon above n 4 at para 15.
21 Id at para 32.
BASSON AJ
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Jurisdiction and leave to appeal
[22] This matter engages this Court’s jurisdiction as it concerns the interpretation
and application of the provisions of the LRA , which give effect to the right to fair
labour practices entrenched in section 23 of the Constitution.22
[23] The right o f access to cou rts is also directly in issue. The LRA is the statute
that regulates access to dispute resolution procedures and courts in labour disputes.
The issues raised in this matter are constitutional in nature and this Court therefore has
jurisdiction.
[24] This matter is also of fundamental impo rtance to the labour market and
employment relations , particularly in the context of large -scale retrenchments. It is
therefore in the interests of justice that leave be granted.
Principles applicable to appeals against the grant or refusal of condonation
[25] The primary issue in this Court is whether the Labour Appeal Court ought to
have interfered with the Labour Court’s discretion to condone the late referral of the
applicants’ claim.
22 See National Union of Metalworkers of SA v Intervalve (Pty) Ltd [2014] ZACC 35; (2015) 36 ILJ 363 (CC) ;
2015 (2) BCLR 182 (CC) at para 25; South African Commercia l, Catering and Allied Workers Union v
Woolworths (Pty) Ltd [2018] ZACC 44 ; (2019) 40 ILJ 87 (CC) at para 20. In National Education Health and
Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154
(CC) this Court held at para 14:
“The LRA was enacted ‘to give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution ’. In doing so the LRA gives content to section 23 of the
Constitution and must therefore be construed and applie d consistently with that purpose.
Section 3(b) of the LRA underscores this by requiring that the provisions of the LRA must be
interpreted ‘in compliance with the Constitution ’. Therefore, the proper interpretation and
application of the LRA will raise a constitutional issue . This is because the legislature is
under an obligation to ‘respect, protect, promote and fulfil the rights in the Bill of Rights ’. In
many cases, constitutional rights can only effectively be honoured if legislation is enacted.
Such legislation will of course always be subject to constitutional scrutiny to ensure that it is
not inconsistent with the Constitution. Where the legislature enacts legislation in the effort to
meet its constitutional obligations, and does so within const itutional limits, courts must give
full effect to the legislative purpose. Moreover, the proper interpretation of such legislation
will ensure the protection, promotion and fulfilment of constitutional rights and as such will
be a constitutional matter. In this way, the courts and the legislature act in partnership to give
life to constitutional rights.” (Emphasis added).
BASSON AJ
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[26] The principle is firmly establis hed in our law that where time limits are set ,
whether statutory or in terms of the rules of court, a court has an inherent discretion to
grant condonation where the interests of justice demand it and where the reasons for
non-compliance with the time limi ts have been explained to the satisfaction of the
court. In Grootboom this Court held that—
“[i]t is axiomatic that condoning a party's non -compliance with the rules of court or
directions is an indulgence. The court seized with the matter has a discretion whether
to grant condonation.”23
[27] And that—
“It is by now axiomatic that the granting or refusal of condonation is a matter of
judicial discretion. It involves a value judgment by the court seized with a matter
based on the facts of that particular case.”24
[28] As a point of departure, this Court must determine the nature of the discretion
applied by the Labour Court when considering wheth er or not to grant condonation:
whether it was discretion in the true sense or the loose sense. The natu re of the
discretion applied will determine the standard of interference this Court must adhere
to in this circumstance.
[29] The discretion to grant or refuse condonation is wide 25 and allows for a court to
consider a wide range of “available courses” 26 each of which falls within the ambit of
its powers, as this Court in Trencon explained:
23 Grootboom v National Prosecuting Authority [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65
(CC) at para 20.
24 Id at para 35.
25 Van Der Berg v Coopers & Lybrand Trust (Pty) Ltd [2000] ZASCA 73; 2001 (2) SA 242 (SCA); Mbutuma v
Xhosa Development Corporation Ltd 1978 (1) SA 681 (A) at 682C -D; Mndebele v Xstrata SA (Pty) Ltd t/a
Xstrata Alloys (Rustenburg Plant) [2016] ZALAC 28; (2016) 37 ILJ 2610 (LAC) at paras 4-5.
26 Media Workers Association of South Africa v Press Corporation of South Africa Ltd (‘Perskor’) [1992]
ZASCA 149; 1992 (4) SA 791 (A) (Media Workers Association) at para 30 explained—
BASSON AJ
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“A discretion in the true sense is found where the lower court has a wide range of
equally permissible options available to it. This type of discretion has been found by
this court in many instances, including matters of costs, damages and in the award of
a remedy in terms of section 35 of the Restitution of Land Rights Act. It is ‘true’ in
that the lower court has an election of which option it will apply and any option can
never be said to be wrong as each is entirely permissible.
In contrast, where a court has a discretion in the loose sense, it does not necessarily
have a choice between equally permissible options. Instead, as described in Knox, a
discretion in the loose sense—
‘mean[s] no more than that the court is entitled to have regard to a
number of disparate and incommensurable features in coming to a
decision’.”27
[30] An indicator of a discretion being “true” is when, in making the decision, “it is
possible that there could be a legitimate difference of opinion as to the proper outcome
of the exercise of the discretion ”.28 It is permissible for the decision -maker to choose
any of the options available before them. 29 The discretion is thus “true” where the
lower court “has an election of which option it will apply and any option can never be
said to be wrong as each is entirely permissible”.30
[31] The decision to grant condonation is either yes or no: there is no wide range of
available options for the decision -maker as envi saged in Trencon. A court can either
grant or deny the condonation. 31 But the election of either option is equally
“The essence of a discretion in [the true] sense is that, if the repository of the power follows
any one of the available courses, he would be acting within his powers, and his exercise of
power could not be set aside merely because a Court would have preferred him to have
followed a different course among those available to him.”
27 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2015] ZACC 22;
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) (Trencon) at para 85-6.
28 Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions
[2008] ZACC 13; 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) at para 93 .
29 See Media Workers Association above n 26 at para 30, as endorsed in Trencon above n 27 at para 84.
30 Id at para 85.
31 There is thus no “wide” range of available options for the decision -maker as envisaged in Trencon above n 27
at para 85.
BASSON AJ
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permissible and is something that reasonable judges could disagree on. To grant
condonation is an exercise of judicial discretion that is o nly fettered by being
judicially explained.32
[32] This distinction “is now deeply rooted in the law governing the relationship
between appeal courts and courts of first instance” and determines the standard of
interference that a court sitting as a court of appeal must apply.33
[33] Where the nature of the discretion is one in the “true” sense, an appellate court
should be slow to substitute a decision of the lower court with that of its own. 34 The
possibility that an appellate court would have arrived at a different outcome within the
permissible range of outcomes, does not entitle that appellate court to interfere with
such a discretion. As this Court articulated in Florence—
“This principle of appellate restraint preserves judicial comity. It fosters certainty in
the application of the law and favours finality in judicial decision-making.”35
[34] Something more is required. In Florence this Court held that a court may not
interfere “unless it is clear that the choice the court has preferre d is at o dds with the
law”.36
32 Grootboom above n 23 at para 35.
33 This Court in Trencon above n 27 at para 87 further accepted:
“An appellate court must heed the standard of interference applicable to either of the
discretions. In the instance of a discre tion in the loose sense, an appellate court is equally
capable of determining the matter in the same manner as the court of first instance and can
therefore substitute its own exercise of the discretion without firs t having to find that the court
of first instance did not act judicially. However, even where a discretion in the loose sense is
conferred on a lower court, an appellate court's power to interfere may be curtailed by broader
policy considerations. Therefore, whenever an appellate court interfer es with a discretion in
the loose sense, it must be guarded.”
34 Id at para 88.
35 Florence v Government of the Republic of South Africa [2014] ZACC 22; 2014 (6) SA 456 (CC); 2014 (10)
BCLR 1137 (CC) at para 113.
36 Id. See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000
(2) SA 1 (CC); 2000 (1) BCLR 39 (CC) (National Coalition) at para 11. See also Mabaso v Law Society of the
Northern Provinces [2003] ZASCA 138; 2004 (3) SA 453 (SCA).
BASSON AJ
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[35] Given this, the question is: what was the Labour Court required to consider
when the application for condonation came before it and did it exercise its discretion
judicially?
[36] Granting condonation must be in the interest s of justice. This Court in
Grootboom set out the factors that must be considered in determining whether or not it
is in the interests of justice to grant condonation:
“[T]he standard for considering an application for condonation is the interests of justice.
However, the concept ‘ interests of justice’ is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the nature of the relief sought; the
extent and cause of the delay; the effect of the delay on the administration of justice and other
litigants; the reasonableness of the explanation for the delay; the importance of the issue to be
raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both
Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of
justice must reflect due regard to all the relevant factors but it is not necessarily limited to
those mentioned above. The particular circumstances of each case will determine which of
these factors are relevant.
It is now trite that condonation cannot be had for the mere asking. A party seeking
condonation must make out a case entitling it to the court’ s indulgence. It must show
sufficient cause. This requires a party to give a full explanation for the non-compliance with
the rules or court’ s directions. Of great significance, the explanation must be reasonable
enough to excuse the default.
The interests of justice must be determined with reference to all relevant factors.
However, some of the factors may justifiably be left out of consideration in certain
circumstances. For example, where the delay is unacceptably excessive and there is
no explanation for the delay, there may be no need to consider the prospects of
success. If the per iod of delay is short and there is an unsatisfactory explanation but
there are reasonable prospects of success, condonation should be granted. However,
despite the presence of reasonable prospects of success, condonation may be refused
where the delay is excessive, the explanation is non -existent and granting
condonation would prejudice the other party. As a general proposition the various
BASSON AJ
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factors are not individually decisive but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice.”37
[37] All factors should therefore be taken into account when assessing whether it is
in the interests of justice to grant or refuse condonation.
Broader object of the LRA
[38] Before turning to the judgment s of the two courts a quo , it is necessary to
briefly consider the legislative context within which the Labour Court exercised its
discretion whether or not to grant condonation. Such an application for condonation
must be considered taking into account not only the broader objec ts of the LRA but
the nature, purpose and functioning of section 189A(13) of the LRA.
[39] This Court in Toyota accepted that the expeditious resolution of disputes in the
context of labour disputes is one of the primary objects of the LRA:
“Time periods in the context of labour disputes are generally essential to bring about
timely resolution of the disputes. The dispute -resolution dispensation of the old
Labour Relations Act was uncertain, costly, inefficient and ineffective. The new
Labour Relations Act (LRA) introduced a new approach to the adjudication of labour
disputes. This alternative process was intended to bring about the expeditious
resolution of labour disputes which, by their nature, require speedy resolution. Any
delay in the resolution of labour disputes undermines the primary object of the LRA.
It is detrimental not only to the workers who may be without a source of income
pending the resolution of the dispute but, ultimately, also to an employer who may
have to reinstate workers after many years.”38
[40] In Myathaza four judges of this Court, recognising the adverse effects delays
impose on both the employers and employees, pronounced that—
37 Grootboom above n 23 at paras 22-3 and 51.
38 Toyota SA Motors (Pty) Lt d v Commission for Conciliation, Mediation & Arbitration [2015] ZACC 40;
(2016) 37 ILJ 313 (CC); 2016 (3) BCLR 374 (CC) (Toyota) at para 1.
BASSON AJ
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“[e]mployment disputes by their very nature are urgent matters that require speedy
resolution so that the employer’s business may continue to operate and the employees
may earn a living.”39
[41] In giving effect to this primary object, the LRA imposes strict time limits
within which various applications and referrals must be launched.40 Non-adherence to
these time limits may be condoned. Both the Labour and the Labour Appeal Court s
have incorporated the general principles for condonation referred to above.41 But they
have also infused factors and considerations specific to labour law: Condonation in the
case of disputes over individual dismissals will not readily be granted .42 The
explanation for non-compliance would have to be compelling, the case for attacking a
defect in the proceedings would have to be cogent and the defect would have to be of
a kind which would result in a miscarriage of justice if it were allowed to stand .43
Whether the delay was a result of a deliberate, wilful decision not to comply with a
lawful and binding award in terms of the LRA is also an important factor to
consider.44 Where the explanation for the delay is the internal processes and
procedures of trade unions, the Labour Court has taken a stricter view.45
[42] A 30-day time limit for launching an ap plication to the Labour Court is set in
section 189A(17) of the LRA:
39 Myathaza v Johannesburg Metropolitan Bus Services (SOC) Lt d t/a Metrobus [2016] ZACC 49; 2018 (1) SA
38 (CC); 2017 (4) BCLR 473 (CC) at para 33.
40 In terms of section 145(1) of the LRA , a review application must be launched with the Labour Court must be
approached within six weeks after the issuing of an award . Similarly, a referral to the Labour Court for a
dismissal that is allegedly automatically unfair, based on operation requirements must be made within 90 days
after conciliation fails. See section 191(11)(a) read with section 191(5)(b).
41 See National Union of Mineworkers v Council for Mineral Technology [1998] ZALAC 22 ; [1999] 3 BLLR
209 (LAC) at para 10.
42 Conradie JA in Queenstown Fuel Distributors CC v Labuschagne NO [1999] ZALAC 24; (2000) 21 ILJ 166
(LAC) remarked at para 25:
“I think that the Labour Court would give effect to the intention of the legislature to swiftly
resolve individual d ismissal disputes by means of a restricted procedure, and to the desirable
goal of making a successful contender, after the lapse of six weeks, feel secure in his award”.
43 Id at para 24.
44 Librapac CC v FEDCRAW [1999] ZALAC 6; (1999) 20 ILJ 1510 (LAC) at para 10; Maseko v CCMA [2003]
11 BLLR 1148 (LC).
45 NEHAWU v Vanderbijlpark Society for the Aged 2011 32 ILJ 1959 (LC).
BASSON AJ
17
“ (a) An application in terms of subsection (13) mu st be brought not later than
30 days after the employer has given notice to terminate the employee’s
services or, if notice is not given, the date on which the employees are
dismissed.
(b) The Labour Court may, on good cause shown condone a failure to comply
with the time limit mentioned in paragraph (a).”
[43] The Labour Court has on occasion dealt with con donation applications under
section 189A(13) of the LRA. In CPFWU the court refused an application that was
launched 284 days late.46 In Zero Appliances the court likewise refused an application
for condonation where the retrenched employees brought a s ection 189A(13)
application 238 days late.47 In Parkinson the Labour Court refused to condone a delay
of about 5 months in launching a section 189A(13) application because (a) the
applicant did not properly explain her delay; (b) the delay was excessive; and (c) there
were no prospects of success. 48 The court emphasised that the procedure in section
189A(13) is supposed to be speedy and pre -emptive, so granting condona tion is strict
in this context:
“This Court has made clear on more than one occasion that the purpose of
section 189A(13) is one that enables this court to supervise an ongoing retrenchment
process or one that has recently been concluded; it is not a remedy that is available
well after dismissals have been effected”.49
[44] And in Clinix I , the parties delayed by some nine months in launching their
section 189A(13) application. 50 Similar to what is contended in this case, the
applicants argued that their delay should be condoned because they relied on the De
46 Catering Pleasure & Food Workers Union v National Brands Ltd (2007) 28 ILJ 1064 (LC) (CPFWU) at
paras 25-6.
47 Zero Appliances (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration [2007] ZALC 19; (2007)
28 ILJ 1836 (LC).
48 Parkinson v Edcon Ltd [2016] ZALCJHB 540 (Parkinson).
49 Id at para 4.
50 Ramiyal v Clinix Selby Park Hospital (Pty) Ltd) [2016] ZALCJHB 485 (Clinix I).
BASSON AJ
18
Beers principle to invalidate thei r dismissals. They then launched their section
189A(13) application after this Court in Steenkamp I declared that the De Beers cause
of action was incompetent. The Labour Court did not accept this as a ground for
condoning their delay. This, the Labour Court held, was because the applicants could
easily have invoked the section during the consultation process .51 In respect of the
application for condonation, the Court held that there were no prospects of success
and that after the Labour Appeal Court’s decision to overturn the De Beers principle
in Steenkamp I, the employees should have been aware of the risk of relying on De
Beers and that an order of compensation or reinstatement would severely prejudice the
employer after a long period of time has lapsed.
Nature, purpose and functioning of section 189A(13)
[45] The LRA provides for a consultative framework within which employees
facing possible retrenchment may participat e in the consultation process in an attempt
to either avoid a possible retrenchment or, where retrenchments are unavoidable, to
participate in attempts to ameliorate the adverse effects of such a retrenchment.
[46] Where a retrenchment exercise involves a larg e number of employees,
section 189A of the LRA applies. This section not only strives to enhance the
effectiveness of the consultation process by providing for the appointment of a
facilitator, but also provides for mechanisms to pre -empt and resolve disp utes about
substantive and procedural unfairness issues as and when they arise d uring the
consultation process.
[47] A distinctive feature of section 189A(13) of the LRA is the separation of
disputes about procedural fairness from disputes about substantive fa irness. Disputes
about substantive fairness may be dealt with by resorting to strike action 52 or by
51 Id at para 5.
52 Section 189A(8)(b)(ii)(aa) of the LRA.
BASSON AJ
19
referring a dispute about the substantive fairness of the dismissals to the Labour Court
in terms of section 191(11)53 of the LRA.54
[48] Disputes about procedura l fairness have been removed from the adjudicative
reach of the Labour Court and may no longer be referred to the Labour Court as a
distinctive claim or cause of action that a dismissal on the basis of operational
requirements was procedurally unfair.55
[49] Although a clear policy decision has been made to remove claims of procedural
unfairness from the ex post facto jurisdictional competence of the Labour Court,
employees are not left without a remedy. In what the Labour Appeal Court referred to
as a “parti al claw -back of jurisdiction”, 56 they may approach the Labour Court in
terms of section 189A(13) of the LRA for an order compelling the employer to
comply with a fair procedure. 57 Where employees have already been dismissed, the
Labour Court has the additio nal power in terms of section 189A(13)(c) of the LRA to
reinstate such an employee to allow for the consultation process to run its course.
[50] Only where these orders are not appropriate, may the Labour Court , where it is
appropriate to do so, order compensation in terms of subsection (d).
[51] The rationale for the removal of the Labour Court’s jurisdiction in respect of
procedural issues from the ambit of section 191(5)(b)(ii) of the LRA, must be viewed
53 The referral must be made within 90 days after a bargaining council with jurisdiction or the CCMA has
certified that the dispute remains unresolved. In terms of section 191(11)(b) of the LRA, the Labour Court may
condone a late referral on good cause shown.
54 Section 189A(8)(b)(ii)(bb) of the LRA.
55 Section 189A(18) provides as follows:
“The Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal
based on the employer’ s operational requirements in any dispute referred to it in terms of
section 191(5)(b)(ii).”
56 Edcon above n 4 at para 20.
57 Clause 2.45 of the Memorandum on the Objects of the Labour Relations Amendment Bill 2001 The Labour
Relations (RS 44, 2003 AA2-p180) explains the purpose of subsection (13) as being to—
“enable workers to refer a complaint about the procedural fairness of an operational
requirements dismissal to the labour Court on an expedited basis and allow the Labour Court
to compel an employer to comply with a fair procedure”
BASSON AJ
20
against the broader context and purpose of section 189A as a whole. Recognising that
large-scale retrenchments may benefit from the interve ntion of third parties,
section 189A provides for an assisted consultative framework in the context of large -
scale retrenchments albeit only for a limited time.
[52] Where proced ural irregularities arise, the process provided for in
section 189A(13) of the LRA allows for the urgent intervention of the Labour Court to
correct any such irregularities as and when they arise so that the integrity of the
consultation process can be res tored and the consultation process can be forced back
on track . The purpose of s ection 189A(13) has been recognised in a long line of
cases. In Insurance & Banking Staff Association the Labour Court explained:
“The overriding consideration under s ection 189A is to correct and prevent
procedurally unfair retrenchments as soon as procedural flaws are detected, so that
job losses can be avoided. Correcting a procedurally flawed mass retrenchment long
after the process has been completed is often economically prohibitive and practically
impossible. All too often the changes in an enterprise with the passage of time deter
reinstatement as a remedy. So, the key elements of section 189A are: early expedited,
effective intervention and job retention in mass dismissals.”58
[53] Similarly in SA Five Engineering the Labour Court held that—
“Suffice it now to say that the intention of s ection 189A(13), read with s ection
189A(18), is to exclude procedural issues from the determination of fairness where
the employees have opted for adjudication rather than industrial action, providing
instead for a mechanism to pre -empt procedural problems before the substantive
issues become ripe for adjudication or industrial action.”59
58 Insurance & Banking Staff Association v Old Mutual Services & Technology Administration (2006) 27 ILJ
1026 (LC) at para 9.
59 NUMSA v SA Five Engineering [2005] 1 BLLR 53 (LC); (2004) 25 ILJ 2358 (LC ) (SA Five Engineering ) at
para 7.
BASSON AJ
21
[54] In exercising its powers in terms of section 189A(13) of the LRA, the
Labour Court thus acts “ as the guardian of the process” 60 and exercises a “degree of
judicial”61 management or oversight over the process. The aim is to proactively foster
the consultation process by allowing parties to seek the i ntervention of the Labour
Court on an expedited basis to ensure that procedural irregularities do not undermine
or derail the consultation process before it ends. The Labour Court in Anglo American
expounds:
“Section 189A(13) was introduced in 2002 and was intended, broadly speaking, to
provide for the adjudication of disputes about procedural fairness in retrenchments at
an earlier stage in the ordinary dispute -resolution process, and by providing for their
determination, inevitably as a matter of urgency, on application rather than by way of
referral. The section empowers employees and their representatives to approach the
court to require an employer to apply fair procedure, assuming, of course, that the
jurisdictional requirements set out in s ection 189A are met. The section affords the
court a broad range of powers, most of which appear to suggest that where a
complaint about procedure is made by a consultin g party, the court has a broad
discretion to make orders and issue directives, thereby extending to the court an
element of what might be termed a degree of judicial management into a contested
consultation process.”62
[55] Where the strict temporal limits set out in section 189A(17) are not adhered to,
the Labour Court may, on good cause shown, condone the failure to adhere to the
strict time limits . Although the Labour Court retains its discretion to grant
condonation, it has consistently held that, given the strict temporal limits attached to a
60 Edcon above n 4 at para 20:
“The object of s ection 189A(13) of the LRA, as appears from a purposive interpretation of
section 189A read as a whole and in context, is to separate out procedural issues and to
provide a means whereby the consultation and facilitation processes are not under mined by
procedural flaws. It offers a useful expedient to the parties to seek the assistance of the court,
acting as the guardian of the process, to ensure that the issues are adequately identified,
considered and ventilated in the process of consultatio n or facilitation before it ends. It thus
ensures that only disputes about the fairness of substantive reasons and outcomes will
generally be subjected to resolution by means of collective action or in a trial involving the
hearing of oral evidence.”
61 Id.
62 National Union of Mineworkers v Anglo American Platinum Ltd [2013] ZALCJHB 262; (2014) 35 ILJ 1024
(LC) (Anglo American) at para 19.
BASSON AJ
22
section 189A(13) application, even a delay of five months is too long and therefore
condonation was refused.63
[56] It is not difficult to see why even a relative short delay of five months is
considered too long in the context of section 189A(13) of the LRA: the purpose of this
procedure is remedial in nature and the “intent no doubt is to allow for early corrective
action so that a process failure will not escalate into a substantive injustice”. 64 Once
the delay becomes to o protracted, the purpose of this process – which is to allow the
Labour Court to interfere with the consultation process and to make an appropriate
order which will remedy the procedural flaw – will be undermined.
[57] However, the length of the delay is only one of the factors to be considered in
an application for condonation.
Is section 189A(13)(d) a self-standing remedy?
[58] A central dispute between the parties is the question whether the remedy of
“compensation” provided for in section 189A(13)(d) is a self-standing remedy. The
applicants insist that it is. Edcon disputes this.
[59] The remedies pr ovided for in section 189A(13)(a )-(d) must be considered in
the broader context of section 189A of the LRA and keeping in mind the overall
purpose of section 189A(13).
[60] The primary purpose of section 189A(13) is thus to allow for early corrective
action to get the retrench ment process back on track. Paragraphs (a)-(d) establish a
hierarchy65 of appropriate relief. Only where it is not appropriate to grant an o rder in
63 Parkinson above n 48.
64 AMCU v Piet Wes Civils CC (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) at para 23 with reference to
Thompson & Benjamin, South African Labour Law (Service no 66, 2016) at AA1-517.
65 Forbes v SA Municipal Workers Union (2014) 35 ILJ 689 (LC) at para 19.
BASSON AJ
23
terms of paragraphs (a) -(c) may an order for compensation be granted in terms of
paragraph (d).
[61] Can it be said then that the compensation remedy provided for in paragraph (d)
is self-standing? The answer is no. The remedy provided for in section 189A(13)(d)
cannot, as contended by the applicants, be divorced from the remainder of this section
and given self-standing meaning.
[62] Before this Court, counsel for the respondent conceded that a postponement by
a Judge of the consideration of the paragraph (d) compensation remedy may create the
basis for compensation being considered separately. I think not.
[63] Whereas a postponement of the consideration of compensation at a later stage
may separate its determination procedurally, a Judge who postpones consi deration of
paragraph (d) compensation would at least have had the benefit of considering the
other three remedies and determined their inappropriateness.
[64] On its own terms , paragraph (d) provides for an exceptional remedy which is
granted only where the p rimary remedies provided for in paragraphs ( a)-(c) are
inappropriate. From the reading of the language in the text of paragraph (d), it is
cogent that remedy (d) will only be considered where (a) -(c) are “not appropriate”.
This therefore means that a Jud ge who reaches the decision to postpone the
consideration of paragraph (d) would have consid ered remedies in paragraphs (a) -(c)
first and would have found these remedies inappropriate. Thus the compensation
remedy can never be a stand -alone remedy. This was made clear by this Court in
Steenkamp I, where it stated:
“Subsection (13)(d) provides that a consultin g party may apply to the Labour Court
for an award of compensation 'if an order in terms of paragraphs (a) to (c) is not
appropriate. It seems to me that the phrase 'if an order in terms of paragraphs (a) to
(c) is not appropriate constitutes a condition precedent that must exist before the court
may award compensation. The significance of this condition precedent is that its
BASSON AJ
24
effect is that the Labour Court is required to regard the orders provided for in
subsection (13)(a)-(c) as the preferred remedies in the sense that the Labour Court
should only consider the remedy in subsection (13) (d) when it is not appropriat e to
make any of the orders in subsection (13)(a)-(c).”66
[65] Second, considering the purpose and overall scheme of section 189A(13) and
against the background of what is stated in section 189A(18) of the LRA, the wording
of the legislation is to remove the op tion of claiming compensation for procedural
unfairness long after retrench ment from the arsenal of remedies available to
retrenched employees who are dissatisfied with the process followed during the
consultation. Third, section 189A(13) does not contemplate a procedure claimi ng
compensation at some future remote time. As the Labour Court held in Parkinson:
“The time limits applicable to an application in terms of s ection 189A(13) are well
known. . . This court has made clear on more than one occasion that the purpose of
section 189A(13) is one that enables this court to supervise an ongoing retrenchment
process or one that has recently been concluded; it is not a remedy that is available
well after dismissals have been effected.”67
[66] The main purpose of the section and the remedies it provides is thus to “get the
retrenchment process back onto a track that is fair.” 68 Even the remedy of
compensation must be read in the context of the short -term remedies provided for in
the same subsection and in light of the jurisdictional restriction provided for in
section 189A(18). Compensation in terms of section 189A(13)(d) cannot be the
primary relief.69
66 Steenkamp I above n 2 at para 162.
67 Parkinson above n 48 at para 4.
68 Edcon above n 4 at para 24.
69 Id.
BASSON AJ
25
Should the Labour Appeal Court have interfered?
[67] The Labour Court exercised a true discretion when granting condon ation. An
appellate court’s powers to interfere with the exercise of a true discretion are limited.
It can only interfere w here the discretion was not exercised judicially or where it had
been influenced by wrong facts or principles or where the decision reached is one
which “could not reasonably have been made by a court properly directing itself to all
the relevant facts and principle”.70
[68] The Labour Appeal Court’s interference was justified. Not only was the
discretion exercised by the Labour Court influenced by wrong principles, it resulted in
a decision which could not reasonably have been made by a court properly directing
itself to the relevant principles. It was not in the interest s of justice that condonation
be granted
[69] The Labour Appeal Court interfered with the Labour Court’s discretion
because of the Labour Court’s misconception about the pur pose and functioning of
section 189A(13) of the LRA. Here the Labour Appeal Court criticises the
Labour Court’s acceptance that it has the jurisdiction to adjudicat e disputes about
unfair procedure in the context of large scale retrenchments. It concludes by
emphasising the point that the jurisdictional competence assigned to the Labour Court
in section 189A(13) cannot be read disjunctively from section s 191(5)(b)(ii) and
189A(18) because “plainly, this power is an exception to the primary prescription that
no adjudication can occur about unfair procedure”.71
[70] The Labour Appeal Court’s criticism i s warranted. The Labour Court
misunderstood the jurisdictional competence conferred on it by section 189A(13) of
the LRA. This much is clear if regard is had to the order granted by the Labour Court.
In its order the Labour Court consolidated the applic ation for compensation in respect
70 National Coalition above n 36 at para 11.
71 Edcon above n 4 at para 21.
BASSON AJ
26
of procedural unfairness under section 189A with the main action and referred it to
trial.72 This is wrong. The jurisdiction of the Labour Court to adjudicate on the
procedural fairness of a dismissal based on the employe r’s operational requirements
has been ousted by section 189A(18) of the LRA. As the Labour Appeal Court
correctly stated, the Labour Court’s jurisdictional competence “cannot be read
disjunctively from section 191(5)(b)(ii) of the LRA and section 189A(18) of the
LRA”.73
[71] Moreover, the procedure within section 189A(13) of the LRA provides for an
urgent remedy on application whilst the parties are still locked in consultations or
shortly thereafter in circumstances where the reinstatement of the dismissed
employees can still salvage the consultation process by restoring the status quo ante .
This process does not contemplate a trial at some further time after the horse has
bolted. It cannot be said that the application had any prospects of success and thus it
could not be said to have been in the interests of justice to grant condonation.
[72] The delay in referring this matter to the Labour Court in terms of
section 189A(13)(d) of the LRA ranges from 10 months to two and a half years. The
Labour Court’s view simply is that it would be “grossly unjust” to bar the applicants
from pursuing their remedies under section 189A(13) merely because they have
pursued a remedy that was later f ound to be incompetent. 74 It further said that the
principle that section 189A(13) is not a remedy that is available well after dismissals
have been effected should not be elevated to an immutable principle and be applied in
circumstances where the applica nts have taken another legitimate course of action
only to be later dispossessed of the cause of action and after the lapse of the 30 -day
period.75 The Labour Appeal Court is decidedly critical of this view taken by the
72 Steenkamp Labour Court judgment above n 3 at para 48.
73 Edcon above n 4 at para 21.
74 Steenkamp Labour Court judgment above n 3 at para 35.
75 This view was espoused in Parkinson above n 48 at para 4.
BASSON AJ
27
Labour Court, as it ignores the fact that the process provided for in section 189A(13)
is designed for expeditious use only.76
[73] This criticism is also warranted. The Labour Court does not appear to have
fully embraced the intrinsic urgency within which judicial intervention must be sought
pursuant to section 189A(13). Although the Labour Court refers to the 30 -day period
within which the application must be launched, the Labour Court appears to merely
accept that because the applicants have provided a plausible explanation as to why the
section 189A(13) application was not pursued from the outset, condonation should be
granted. Again, having regard to the primary purpose of section 189A(13) , which is
to get the consultation process back on track whilst parties are still engaged in
consultation or in timeous proximity to the dismissal of the employees when the
process may still be salvaged, a long delay in seeking remedies provided for this
purpose is simply inappropriate. The mere fact that the applicants’ application in
terms of section 189A(13) ha s been delayed as a result of their pursuit of a remedy
that has subsequently been found to be wanting, does not entitle the court to ignore the
purpose of the process provided for in section 189A(13).
[74] This brings me to the explanation for the delay. Although the explanation for
the delay is an important factor to be considered in any condonation application, it is
but one of the factors. Whether an unsuccessful cause of action may for m the basis of
a condonation application will depend on whether it constitutes an acceptable
explanation for the delay in the particular circumstances of the case. The Labour
Appeal Court found that as a matter of principle it does not.77
[75] Although I do accept that a subsequently overturned legal strategy may
constitute a reasonable explanation for the delay, this explanation must be viewed in
its proper context. The section 189A(13) procedure has always been available to the
applicants at that time. Yet they made an informed and deliberate choice to follow the
76 Edcon above n 4 at 42.
77 Edcon above n 4 at paras 28-32.
BASSON AJ
28
De Beers avenue as opposed to the section 189A(13) procedure , because they
regarded it a “slam dunk” with no fall -back position. Only once this avenue ha d been
closed off, did they turn to the section 189A(13) procedure.
[76] Lastly, the L RA specifically p rovides for a dispute resolution mechanism
designed to deal with procedural flaws that arise during or immediately after the
consultation process and to allow the Labour Court , acting as the guardian of the
process, to set the consultation process back on track. Despite having this process
available, the applicants have decided to rather pursue the common law remedy. This
Court in Steenkamp I expressed it s disapproval of the applicants ’ choice of the De
Beers cause of action:
“The second basis for my conclusion that the applicants ’ appeal should be dismissed
is a principle that, for convenience, I cal l 'LRA remedy for an LRA breach . The
principle is that, if a litigant’s cause of action is a breach of an obligation provided for
in the LRA, the litiga nt, as a general rule, should seek a remedy in the LRA. It
cannot go outside of the LRA and invoke the common law for a remedy. A cause of
action based on a breach of an LRA obligation obliges the litigant to utilise the
dispute resolution mechanisms of t he LRA to obtain a remedy provided for in the
LRA.
. . .
[A] litigant who bases its case on a breach of an obligation in the LRA must seek a
remedy in the LRA and not outside of the LRA. This court has already laid down this
principle. In one of the two majority judgments in Chirwa Ngcobo J said:
‘Where, as here, an employee alleges non -compliance with
provisions of the LRA, the employee must seek the remedy in the
LRA. The employee cannot, as the applicant seeks to do, avoid the
dispute resolution mechanisms provided for in the LRA by alleging a
violation of a constitutional right in the Bill of Rights. It could not
have been the intention of the legislature to allow an employee to
raise what is essentially a labour dispute under the LRA as a
constitutional issue under the provisions of s ection 157(2). To hold
otherwise would frustrate the primary objects of the LRA and permit
an astute litigant to bypass the dispute resolution provisions of the
LRA. This would inevitably give rise to forum shopping s imply
BASSON AJ
29
because it is convenient to do so or as the applicant alleges,
convenient in this case ‘for practical considerations ’. What is in
essence a labour dispute as envisaged in the LRA should not be
labelled a violation of a constitutional right in the Bill of Rights
simply because the issues raised could also support a conclusion that
the conduct of the employer am ounts to a v iolation of a right
entrenched in the Constitution.’”78
Conclusion
[77] The Labour Court did not exercise its discretion judicially and that justified the
interference by the Labour Appeal Court.
Costs
[78] Although both parties sought costs if they were successful , the dictates of
fairness and equity require that no order as to costs should be made. This is a labour
matter and it raised an important issue of law which had to be considered by this
Court.
Order
[79] In the result the following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. There is no order as to costs.
78 Steenkamp I above n 2 at paras 137 and 140.
For the Applicants:
For the Respondent:
L P Halgryn SC and F Venter
instructed by Jan Kemp Nel Attorneys
A Myburgh SC and F Boda SC
instructed by Norton Rose Fulbright
South Africa Inc