CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 154/20
In the matter between:
NATIONAL UNION OF MINEWORKERS
OBO VIOLET MASHA AND OTHERS Applicant
and
SAMANCOR LIMITED (EASTERN CHROMES MINES) First Respondent
NICHOLUS SONO N.O. Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Neutral citation: National Union of Mineworkers obo Violet Masha and Others v
SAMANCOR Limited (Eastern Chromes Mines) and Others [2021]
ZACC 16
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J
Judgments: Mhlantla J (unanimous)
Decided on: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the
Constitutional Court website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 22 June 2021.
Summary: Appeal from the Labour Appeal Court — costs — no reasons from
Labour Appeal Court for departure from the general rule that costs
2
follow the result does not apply in labour matters — appeal on
costs upheld and costs orders set aside
ORDER
On appeal from the Labour Appeal Court, Johannesburg:
1. Condonation is granted.
2. Leave to appeal on the merits is refused.
3. Leave to appeal against the costs or ders of the Labour Appeal Court is
granted.
4. The appeal against the costs orders of the Labour Appeal Court is upheld.
5. The costs orders granted by the Labour Appeal Court are set aside.
6. No order as to costs is made in relation to the proceedings in this Court.
JUDGMENT
MHLANTLA J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Pillay AJ,
Theron J, Tlaletsi AJ and Tshiqi J concurring):
Introduction
This is an application for leave to appeal against a judgment and order of the
Labour Appeal Court.1 That Court upheld an appeal against a decision of the Labour
Court with costs.2
1 Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo
[2020] ZALAC 17; (2020) 41 ILJ 2135 (LAC) (Labour Appeal Court judgment).
2 Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration [2018]
ZALCJHB 435 (LC) (Labour Court judgment).
MHLANTLA J
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Background facts
The National Union of Mineworkers (the applicant) is acting on behalf of five of
its members, namely, Ms Violet Masha, Mr Vincent Pholwane, Mr Nkipilili Siqalane,
Mr Father Mhlongo , and Mr Moses K hoza. These members were employed by
SAMANCOR Limited (Eastern Chrome s Mines ), the first respondent , until their
dismissal.
On 19 October 2015, Mr Madikwane, the mine overseer, visited the North 8
North Tip section of the first respondent’s mine. He found five employees (the five
members listed above) working under unsafe conditions . They had failed to install a
temporary support and a safety net before drilling in the area. At the time, one of the
team members, Ms Maseko, was not pres ent as she had be en sent by one of the five
employees to fetch explosives that would be used when the site was ready .
Mr Madikwane verbally instructed the team to stop working in those unsafe conditions
and further instructed them to install the safety measures before continuing to work. He
left the site, and a few minutes later, heard the sound of the drilling machine. Upon his
return, he found two of the employees still working under unsafe conditions whilst the
other three were watching. Mr Madikwane then issued a written instruction to the crew
to stop working until it was safe to do so.
A few days later, Mr Madikwane returned to the site and discovered that nothing
had changed , as the employees had continued to work notwithstanding his written
instruction. The five employees were charged with misconduct for failing to comply
with a verbal and written instruction issued by their supervisor. Following a
disciplinary inquiry, they were found guilty of misconduct and dismissed.
MHLANTLA J
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Litigation history
CCMA
The dismissed employees lodged a dismissal dispute with the C ommission for
Conciliation, Mediation and Arbitration (CCMA), the third respondent . During the
arbitration proceedings, the dismissed employees alleged that the employer had been
inconsistent in disciplining its employees in that: (a) Ms Maseko, who was on duty with
them, was not initially charged. It was only after a complaint by the applicant, that the
employer had charged her , but she was acquitted ; and (b) another employee,
Mr Motlhabing, had also been charged for working under unsafe conditions , but had
not been dismissed.
After considering the evidence, the arbitrator concluded that the employees had
been guilty of working without installing the safety measures as instructed.3 However,
he held that there was an unjustifiable differentiation between the employees and
Ms Maseko which amounted to an inconsistency in the implementation of the
disciplinary measures. Accordingly, the arbitrator held that the dismissal was unfair
and issued an award for reinstatement of the employees.
Labour Court
The first respondent instituted review proceedings in the Lab our Court. The
Labour Court held that Mr Madikwane, the employees’ supervisor, did not immediately
return following his written instruction to inspect the working area, but did so only three
or four days later when he found the site in the same condition as before. The Court
held that there was insufficient evidence relating to the defiance of the written
instruction to make a finding on credibil ity. It noted that the supervisor could have
made a full report o n what he had found and how his instruction had been defied.
3 Mr Nicholus Sono N.O. was the arbitrator. He is the second respondent and is cited in his official capacity as a
commissioner for the third respondent, the CCMA. Both are cited for their interest in the matter and no relief is
claimed against them. Neither is participating in these proceedings.
MHLANTLA J
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Further, the lack of clear evidence on when he returned to visit and inspect the site,
pointed to him not having done so.
The Labour Court, therefore, held that the first respondent had failed to prove ,
on a balance of probabilities, that the employees had defied the written instruction given
to them by Mr Madikwane. The review application was dismissed with no order as to
costs.
Labour Appeal Court
The Labour Appeal Court held that the Labour Court had failed to consider the
main issue, that is, whether the inconsistency in the application of disciplinary measures
had been proved. After evaluating the evidence, the Labour Appeal Court rejected the
arbitrator’s finding of inconsistency of discipline on the basis that Ms Maseko, who had
been acquitted, was not present when the instructions were issued. Furthermore, it held
that the dismissed employees could not rely on the fact tha t Ms Maseko had been
acquitted and use that as a basis for their challenge in respect of inconsistency of
discipline. The Labour Appeal Court held that the Labour Court adopted an opposing
position to that of the arbitrator concerning Mr Madikwane’s instr uctions.
Consequently, there was no basis for the Labour Court to hold that a reasonable
decision-maker could find that the five employees did not disregard the instructions.
The Labour Appeal Court held that the five employees were aware of the rules
and that dismissal was an appropriate sanction for contravening the rules. It also held
that, while it is generally not appropriate to dismiss an employee for a first offence, this
default position need not be adopted if the misconduct is serious , including the wilful
endangering of the safety of others. Further, the employees disregarded both a verbal
and written instruction . Relying on Impala Platinum,4 which under scored the
4 Labour Appeal Court judgment above n 1 at para 26 citing Impala Platinum Limited v Jansen (2017) 38 ILJ 896
(LAC); [2017] 4 BLLR 325 (LAC) at para 17, in which that Court explicated the degree of seriousness which
accompanies a failure to observe safety regulations in the mining context:
“It is clear that the mining industry has been under tremendous scrutiny regarding safety
measures due to the high risk in the nature of the work done. In order to have a safe mining
MHLANTLA J
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importance of safety measures in the context of mining operations , it held that the
sanction of dismissal was justified. The Labour Appeal Court upheld the appeal with
costs. The order of the Labour Court was set aside. In its place, the
Labour Appeal Court declared that the dismissal of the five employees was
procedurally and substantively fair and the applicant was ordered to pay the costs of the
application.
In this Court
The applicant approached this Court for leave to appeal against the order of the
Labour Appeal Court. On 25 November 2020, the Chief Justice issued directions
calling on the parties to file written submissions on costs, having particular regard to
this Court’s judgment in Zungu.5
The parties have filed written submissions and the matter was determined
without oral argument.
Applicant’s submissions
The applicant submits that the L abour Appeal Court was wrong on the law and
facts when it set aside the judgment of the Labour Court. The applicant submits that at
the heart of the matter is the inconsistent application of disciplinary measures and the
Labour Appeal Court’s misapplication of this principle. It submits that, as a matter of
law, if an employer applies selective discipline and retains some employees while
dismissing others, it is enjoined to reinstate the dismissed employees as the employer is
taken to have condoned the misconduct. Therefore, the judgment and orders are
inconsistent with section 23(1) of the Constitution , which provides for the right to fair
environment, the regulations which were contravened by Jansen were promulgated to ensure
that workers doing underground work underwent competency training, and declared competent
before being allowed to do underground work. By his actions Jansen did not only undermine
the regulatory framework and put in danger life and limb, he also placed his employer at risk of
section for contravening the statutory regulations.”
5 Zungu v Premier of the Province of KwaZulu -Natal [2018] ZACC 1; (2018) 39 ILJ 523 (CC); 2018 (6) BCLR
686 (CC).
MHLANTLA J
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labour practices . Furthermore, the application rais es constitutional issues as it
implicates the right to fair labour practices and the right to access courts, as provided
for in section 23(1) and section 34 of the Constitution respectively.
Regarding the allegation of the inconsistency of discipline amongst the
employees, the applicant submits that Mr Motlhabing was charged for similar conduct,
but not dismissed. Further, Ms Maseko was not dismissed, while she was also part of
the group that worked with the dismissed employees. The applicant submits that there
is no reason why Ms Maseko was treated differently, despite her not being present when
Mr Madikwane visited the team. In addition , her being subject to the disciplinary
inquiry was merely a formality and her relationship with Mr Madikw ane played a role
in her receiving different treatment. It submits that the Labour Appeal Court failed to
consider all material evidence before it , and also failed to ensure that all parties were
treated fairly. The applicant submits that not all of the dismissed employees had carried
out the work after the verbal instruction. Others were merely standing around and,
therefore, those employees were dismissed for derivative misconduct. This, it submits,
is in conflict with this Court’s decision in Dunlop Mixing and Technical Services.6 The
applicant submits that, despite evidence that all five employees carried out some work,
the Labour Appeal Court erred when it upheld the appeal.
The applicant submits that the sanction was disproportionate, in that the alleged
seriousness of the risk was exaggerated during the dispute resolution proceedings as it
was evident that compliance with the verbal instruction would not ha ve led to the
misconduct charge. Lastly, the Labour Appeal Court failed to tak e into account the
personal circumstances of the dismissed employees and did not afford them the
protection of section 23(1) of the Constitution.
6 National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd
[2019] ZACC 25; 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC) (Dunlop Mixing and Technical Services).
MHLANTLA J
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First respondent’s submissions
The first respondent submits that the application does not raise a matter of public
importance and the L abour Appeal Court applied well-established principle s of law.
The first respondent submits that the Labour Appeal Court noted that the arbitrator had
found the misconduct proven, and having considered the issue itself, also found that the
dismissed employees had failed to adhere to the instructions. It notes that this issue is
not challenged by the applicant before this Court.
The first resp ondent submits that the derivative misconduct argument was not
raised in the L abour Appeal Court and the argument lacks substance. It submits that
the individual members who were dismissed were part of a ‘gang of employees ’
working together in a section of the mine without making it safe as required.
They continued to do so despite an instruction to the contrary. The distinction that some
were onlookers is not justified, as they were all required to stop working and make the
area safe and they failed to do so. The first respondent further submits that Dunlop
Mixing and Technical Services has no bearing on this matter , as it sets out the
employees’ fiduciary responsibility to account to the employer in the context of a
protected strike.
The first respondent submits that the Labour Appeal Court held that there was
no factual basis for finding that the employer had failed to comply with the parity
principle. It submits that the applicant has failed to show that Ms Maseko had been
found guilty or should have been found guilty of the same infractions. It submits that
the applicant has failed to demonstrate that the L abour Appeal Court was wrong in its
articulation of the principles relating to consistent discipline. Furthermore, the applicant
has failed to raise any issue of principle relevant to the L abour Appeal Court’s
evaluation and assessment of the seriousness of the misconduct.
Regarding the sanction, the first respondent notes that the personal circumstances
of the employees were not canvassed in the L abour Appeal Court and there is no
suggestion that, had they been considered, they would have been material to a decision
MHLANTLA J
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to uphold the dismissal. Consequently, there is no basis to conclude that this was not
considered.
Issues
This Court has to determine the following issues:
(a) Whether condonation should be granted;
(b) Whether this matter engages this Court’s jurisdiction;
(c) Whether it is in the interests of justice to grant leave to appeal;
(d) Whether the dismissal was procedurally and substantively fair; and
(e) What is an appropriate remedy in the circumstances?
Condonation
The application is out of time by approximately 20 days. The applicant submits
that it was not informed of the date of hand down of the Labour Appeal Court judgment.
It discovered on 22 June 2020 that the judgment had been delivered on 18 May 2020.
It received the judgment on 23 June 2020. Upon considering the judgment, it instructed
its attorneys to file an application for leave to appeal and briefed a senior counsel
experienced in constitutional litigation. The applicant submits that the delay was not
out of disregard for the rules of this Court , nor was it wilful . The delay should be
compensated for by the reasonable prospects of success on appeal, the importance of
the matter and the constitutional issues implicated. The first respondent opposes the
application on the basis that the dela y is excessive, the explanation does not cover the
entire period and the application has no prospects of success.
In my view, t he delay is minimal and the explanation is satisfactory .
Furthermore, there will be no significant prejudice to the first respondent.
Therefore, condonation should be granted.
MHLANTLA J
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Jurisdiction
This matter implicates the employees’ r ights to fair labour practices, a fair
hearing and access to justice. Therefore, constitutional issues have been raised. Thus,
this Court’s jurisdiction is engaged. This is specifically with regard to the question
whether the employees’ dismissal was unfair. Second, whether the
Labour Appeal Court was correct in mulcting the applicant in costs. This Court has the
requisite jurisdiction to deal with both issues.
Leave to appeal
Having established jurisdiction, the question remaining is whether it is in the
interests of justice for leave to appeal to be granted. This Court’s decision in NEHAWU
is instructive in this regard.7 In NEHAWU, this Court stated that determining whether
it is in the interests of justice to grant leave to appeal requires – among other
considerations – an assessment of whether there are reasonable prospects of success in
the application.8 In essence, whether there are reasonable prospects that an appeal court
will reverse or materially alter the decision of the court a quo.
With regard to the merits, there are no reasonable prospects of success. I expand
more on this below. However, the issue of costs is on a different footing in respect of
which there are reasonable prospects of success. What follows is a discussion of each
aspect, that is, the merits and costs, in the determination whether leave to appeal should
be granted.
Merits
While Ms Maseko was charged, this was not completely on the same grounds as
the dismissed employees, as she was not present when the supervisor arrived at the site
and had not participated during the drilling exercise. The other emp loyee,
7 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) (NEHAWU).
8 Id at paras 14 and 25.
MHLANTLA J
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Mr Motlhabing, had been charged for failing to install the safety net properly. It was
found that the safety net and camlocks had been installed , but there were insufficient
S- hooks. Therefore, his case can be distinguished from the circumstances of the
dismissed employees. The Labour Appeal Court was correct in concluding that there
was no basis for a finding of inconsistency of discipline. The Labour Appeal Court
considered the evidence and held that the employees had been correctly found guilty of
working in conditions that breached health and safety standards. That conclusion is
unassailable.
What remains is the issue of the sanction. The employees were employed in the
mining industry . They were performing u nderground work and drilling in unsaf e
conditions.9 They disregarded their supervisor’s verbal and written instructions meant
to ensure that adequate safety measures were in place . By doing so, t hey undermined
their supervisor. The misconduct is serious because it placed their lives, and those of
the other workers, at risk. The sanction of dismissal was thus justified. Therefore, the
Labour Appeal Court was correct in setting aside the arbitration award and confirming
the dismissal of the five employees. It follows that the application for leave to appeal
on the merits lacks reasonable prospects of success and must be dismissed.
Costs
Lastly, the question of costs . The applicant submi ts that the costs order s are
unjustified. The Labour Appeal Court did not apply the principle set out in Dorkin10
9 Impala Platinum above n 4 is apposite in these circumstances.
10 Member of the Executive Council for Finance: Kwa Zulu-Natal v Dorkin N .O. [2007] ZALAC 34; [2008] 29
ILJ 1707 (LAC) (Dorkin) at para 19, in which the Labour Appeal Court stated the reasons why cost s orders in
labour matters would ordinarily be unjustified, as follows:
“[T]he norm ought to be that cost orders are not made unless those requirements are met. In
making decisions on cost orders this Court should seek to strike a fair balance between on the
one hand, not unduly discouraging workers, employers, unions and employers’ organisations
from approaching the Labour Court and this Court to have their disputes dealt with, and, on the
other, allowing those parties to bring to the Labour Court and this Court frivolous cases that
should not be brought to Court. That is a balance that is not always easy to strike but, if the
Court is to err, it should err on the side of not discouraging parties to approach these Courts with
their disputes. In that way these Courts will contribute to those parties not resorting to industrial
action on disputes that should properly be referred to either arbitral bodies for arbitr ation or to
the Courts for adjudication.”
MHLANTLA J
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and Zungu,11 and thus did not exercise its discretion judicially. The first respondent
submits that the principles applicable to the awarding of costs are well-known and there
is no principle for this Court to engage with or provide guidance on. Further, the matter
does not raise a constitutional or a legal issue of general public importance.
I agree with the applicant that the Labour Appeal Court did not have regard to
this Court’s decision in Zungu. In Zungu, this Court held that “the rule of practice that
costs follow the result does not apply in labour court matters”.12 The Court also quoted
Dorkin with approval where it was held that it is crucial not to discourage employees,
unions and employers ’ organisations from approaching the Labour Court and Labour
Appeal Court by mulcting unsuccessful litigants in costs.13 This Court further said that
reasons must be provided where a costs order is issued.14
In this matter, the Labour Appeal Court mulcted the appli cant in costs without
furnishing reasons for doing so. It appears that the Labour Appeal Court simply adopted
the rule that costs follow the result. There is nothing to indicate why the applicant was
ordered to pay the costs in both Courts. This is compounded by the fact that the Labour
11 Zungu above n 5 at para 26. In Zungu, this Court endorsed and applied the principle set out in Dorkin, which
was that in the ordinary course of a labour matter, the applicant ought not to be mulcted in costs should they fail
in their claim unless circumstances render it just to do so.
12 Id at para 24.
13 Id.
14 Id at paras 2 4-5. The reasons a court may have for a costs order against a party ought to have regard to the
factors set out in section 162 of the Labour Relations Act 66 of 1995 which read as follows:
“(1) The Labour Appeal Court may make an order for the payment of costs, according to the
requirements of the law and fairness.
(2) When deciding whether or not to order the payment of costs, the Labour Appeal Court may
take into account—
(a) whether the matter referred to the Court should have been referred to arbitration in
terms of this Act and, if so, the extra costs incurred in referring the matter to the Court;
and
(b) the conduct of the parties—
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.
(3) The Labour Appeal Court may order costs against a party to the dispute or against any person
who represented that party in those proceedings before the Court.”
MHLANTLA J
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Court had made no order as to costs in its judgment. In this regard, the Labour Appeal
Court substituted the Labour Court’s order as follows: (a) the arbitration award was
reviewed and set aside ; (b) the dismissal of the employees was declared procedural ly
and substantively fair ; and (c) the third responden t (the applicant in this Cour t) was
ordered to pay the costs of the application. There is no explanation for order number
three, which had the effect of overturning the Labour Court’s finding that there should
be no order as to costs.
The applicant’s role is to defend the rights of its members. It cannot be argued
that challenging a dismissal alone justifies a costs order. Mulcting the applicant in costs
in a labour matter where there is no finding of any untoward conduct on the part of the
applicant is intolerable. The costs orders will have a chilling effect on the applicant and
may deter it from fulfilling its duty to represent its members without fear of reprisal .
This may affect its members’ right to access justice and thus, may infringe sections 23
and 34 of the C onstitution. However, there may be instances where a costs order is
warranted and in that case, reasons must be provided. Therefore, it is in the interests of
justice that leave to appeal against the costs order s issued by the Labour Appeal Court
be granted.
It is a trite principle of our law that a court considering an order of costs exercises
a discretion. This discretion is to be exercised judici ally and in accordance with the
correct principles of law. Where this is not so, an appeal court is enjoined to interfere.
In this matter, the Labour Appeal Court did not provide reasons for its cost s
orders. The costs orders are at odds with this Court’s decision in Zungu, and fly in the
face of what was said in Dorkin. In this regard, i t erred in departing from the general
rule that losing part ies in labour matters should not be ordered to pay the successful
parties’ costs, unless there are reasons warranting the imposition of a costs order.
Therefore, the Labour Appeal Court did not exercise its discretion judicially. This Court
is thus entitled to interfere with the costs order. It follows that the appeal on costs should
be upheld and the costs orders set aside.
MHLANTLA J
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Order
The following order is made:
1. Condonation is granted.
2. Leave to appeal on the merits is refused.
3. Leave to appeal against the costs order s of the Labour Appeal Court is
granted.
4. The appeal against the costs orders of the Labour Appeal Court is upheld.
5. The costs orders granted by the Labour Appeal Court are set aside.
6. No order as to costs is made in relation to the proceedings in this Court.
For the Applicant:
For the First Respondent:
Cheadle Thompson and Haysom
Incorporated
CE Watt-Pringle SC instructed by Lebea
& Associates Attorneys