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Reportable THE LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG CASE NO: J 1995/13 In the matter between: ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION First Applicant APPLICANTS APPEARING IN ANNEXURE “A” Second to Further Applicants and ANGLOGOLD ASHANTI LIMITED Respondent Heard: 3-5, 10,-12, 6 – 19 February 23 March and 15 May 2015 Delivered: 3 November 2015 Summary: (Unprotected Strike – Automatically unfair dismissal based on union membership – substantively and procedurally unfair dismissal – relief – Effect of s 54 Notice under MHSA on strike). JUDGMENT

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Reportable

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

CASE NO: J 1995/13

In the matter between:

ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION

First Applicant

APPLICANTS APPEARING IN ANNEXURE “A”

Second to Further Applicants

and

ANGLOGOLD ASHANTI LIMITED Respondent

Heard: 3-5, 10,-12, 6 – 19 February 23 March and 15 May 2015 Delivered: 3 November 2015 Summary: (Unprotected Strike – Automatically unfair dismissal based on union membership – substantively and procedurally unfair dismissal – relief – Effect of s 54 Notice under MHSA on strike).

JUDGMENT

Page 2

LAGRANGE, J

Introduction

[1] This case concerns the fairness of the dismissal of 539 employees of the

respondent arising from their alleged participation in an unprotected strike

on Saturday, 20 April 2013. Whether or not there was a strike on that day

is in dispute, though the applicants accept that if it is proven that there was

a strike it was an unprotected one. One of the unusual complicating

factors in the case is that the normal operations of the mine were

suspended during the period when the alleged action took place for

reasons that are set out in more detail below.

[2] The dispute about the fairness of the dismissals is a multi-layered one of

alternative claims ranging from automatically unfair dismissal to

substantively and procedurally unfair dismissal. A thread in the claims of

automatically unfair dismissal and the alternative claim of ordinary unfair

dismissal is that the 539 workers dismissed in consequence of this event

were only AMCU members, whereas at least 500 others who did not report

for duty were not dismissed. Another important strand is that AGA did not

deal with the applicant’s or the union in the same way that it had dealt with

far more serious industrial action at Mponeng and Tautona mines, where

nobody had been dismissed for participating in unprotected strike action.

[3] At the time of the events in April 2013, AMCU’s membership at Moab

Khotsong was 799 and NUM’s 3 366 out of a total workforce of 4646, or

17 % and 71 % respectively. Although various figures were presented in

the course of the trial, from the most definite ones provided by Mr W van

Heerden who was the Senior HR Manager at Moab Khotsong (‘van

Heerden’) it appears that 1924 (63 %) of the 3043 miners rostered to

work did report for duty on their ‘Saturday shift’ of 19 or 20 April. During

evidence, this figure was broken down as follows: 142 out of 420 workers

rostered (34%) reported for duty on the night shift; 933 out of 2463

workers rostered (38%) reported for duty on the day shift, and 44 out of

160 workers rostered (34%) reported for duty on the afternoon shift.

According to van Heerden, a 10 % shortfall on full attendance would have

been normal.

Page 3

[4] Van Heerden and Madondo also testified, though none of this information

had been tested with the applicants’ witnesses who had reported for work,

that 112, 759 and 29 team leaders, miners and shift bosses clocked in

underground on the night shift, day shift and afternoon shifts starting on 19

and 20 April. Correspondingly, 31, 174 and 50 surface staff clocked in for

the same shifts, though some of the supervisory staff would have been

attending training on account of the suspension of normal mining

operations and the conditions governing the suspension.. Van Heerden

claimed that the training which took place at Gateway training centre was

scheduled in such a way that some supervisors would have gone on

Friday and others on Saturday, which is something confirmed by a shift

boss who testified.

[5] A total of 585 employees, all of whom were AMCU members, were

charged for participating in the alleged strike. Of these, 323 employees

attended hearings and appeals. Of AMCU’s 799 members 539, or two-

thirds of them, were dismissed. Of those members who were dismissed,

more than 200 did not attend a disciplinary hearing. No NUM members

were charged for participating in the alleged strike.

[6] Of AMCU’s members, 243 remained employed after the dismissals.

Nearly 168 of them did report for work either on 19 or 20 April and were

not dismissed. A further 16 who attended training at the gateway training

centre and another 13 who reported to the helipad on 20 April were also

not dismissed. In addition, 46 who were accused of participating in the

strike were found not guilty and consequently escaped dismissal.

According to statistics provided by the company, of the total number of

1512 employees living at the Itireleng hostel on the mine premises, only

195 were applicants, amounting to about one third of the AMCU members

charged for striking and just over 36 % of all those dismissed.. According

to the uncontested evidence of Mr I Jacobs, Vice President of Labour

Relations for Anglo gold Ashanti (‘AGA’) in South Africa (‘Jacobs’) the

remaining two thirds of the workforce live in AGA villages in the

neighbouring towns and travel to work using public transport or their own

private transport.

Page 4

[7] There are also unfair dismissal claims for misconduct pending in respect of

17 alleged instigators of the strike and the local AMCU leadership (‘the top

seven’) at Moab Khotsong, which did not form part of these proceedings.

[8] There are also a number of ancillary matters the court had to determine

including the appropriate relief that should be granted to a group of

identified employees whom the respondent concedes should not have

been dismissed for alleged participation in an unprotected strike, because

they had some or other acceptable justification for not being at work on the

day in question. This group comprised in all, approximately 37 of the

applicants. During the course of hearing evidence, AGA tendered to

reinstate some of those in this group, some with immediate and full

retrospective effect. In the case of others, the only dispute remaining is to

what extent their reinstatement should be retrospective.

[9] At the start of the proceedings the parties conducted an in loco inspection

encompassing the Vaal region operations of AGA in which the relevant

events took place. The locations observed in the course of that inspection

were confirmed by the evidence of a security superintendent for AGA, who

had been the guide during the inspection. The Vaal region mines consist

of Kopanong, Moab Khotsong and Great Noligwa.

[10] The main events at Moab Khotsong canvassed in the evidence took place

in the vicinity of the Itireleng hostel complex (sometimes referred to as no

1 shaft) on mine property, the Moab Khotsong mine itself (no 11 shaft); a

recreation facility, where the disciplinary process was conducted, known

as Eagles’ Roost, and the Gateway training centre. All of these locations

are at least a few kilometres apart on the West Vaal region property.

Chronology

[11] Although there are some important disputes of fact the overall chronology

of events pertinent to this matter not in dispute and appear in the outline of

events and evidence below.

Page 5

The 2012 unprotected strike in the gold industry and its aftermath

[12] Following the tumultuous and tragic events of August 2012 arising from

the unprotected strike supported by AMCU members employed at Lonmin

Platinum, parts of the gold mine industry also experienced a prolonged

unprotected wage strike which lasted from 22 September to 23 October

2012. The core demand was the demand for a wage of R 12500. The

strike heralded the rise of AMCU as a major role player in organised

labour at the respondent’s gold mining operations in the respondent’s

West Wits and Vaal River Regions respectively. The West Wits region

comprises Mponeng, Savuka and Tautona mines and the Vaal River

Region consists of Mophotsong, Kopanong and Great Noligwa mines.

[13] The unprotected strike ended when a 2% increase was concluded with

worker representatives in a labour forum, which - as one AGA witness

described it - “morphed into AMCU”. According to AGA it was understood

as part of the settlement that even though the strikers would return to work

and would not be dismissed for their participation in the unprotected strike,

disciplinary action would still be taken against them. In October it was

conveyed to AMCU that all the participants in the unprotected strike would

have a final written warning entered on their records. However, this

decision was not immediately relayed to individual employees and the final

written warning was only entered on their records at different dates at the

different mines. How it was dealt with at each mine is mentioned below.

[14] Jacobs testified that AGA did not dismiss workers because it was

recognised that AMCU was newcomer to the industry and it was

necessary to integrate it into the industrial relations’ infrastructure. In

addition, it was virtually impossible to dismiss the number of workers

involved in the strike.

The sit-ins at Mponeng and Tautona after the gold industry strike

[15] Before the end of 2012 there were also underground sit-ins at both

Mponeng and Tautona mines by workers who had participated in the

previous one month unprotected strike.

Page 6

[16] The sit-in by approximately 4000 workers at Mponeng arose because

workers believed that a so-called “starter bonus” of R 1500 and which had

been promised to them when they returned to work from the industrywide

strike had not been paid timeously. Secondly, they were demanding that a

certain Mr Mathlabane, an AMCU leader, who had been arrested in

connection with damage to property and other offences should be

released from custody. The sit-in was resolved when agreement was

reached on payment of the bonus and the release of the member in

question on bail. However, AGA deemed it necessary to close the mine for

six days because it was not sure it could guarantee a safe return to work.

A multi-stakeholder forum including worker representatives of AMCU

members was convened and a code of conduct entitle ‘guiding principles’

was concluded on 10 November 2012.

[17] The mine pleaded that it decided not to take disciplinary action against

employees because the incident was directly related to the 2012 strike and

it was attempting to normalise relations with AMCU and ensure that the

mine could operate again. Had it taken action as a result of the sit-in the

guiding principles agreement could not have been concluded. Jacobs

testified that a decision had been taken not to dismiss the employees

because it was not in the company’s interests nor in the interest of

establishing a relationship on a sound footing with AMCU. Moreover,

AMCU leadership had made representations to the mine not to take

disciplinary action. It could not have concluded the ‘guiding principles’

document if it had followed the disciplinary route.

[18] The sit-in at Mponeng on 5 November 2012, which lasted from 05H00 to

19h30, resulted in a loss of normal production during that time apart from

damage inflicted during the action. About 2150 workers had gone

underground but refused to go to their working areas. A few workers from

the previous night-shift also remained underground.

[19] The sit-in at Tautona mine on 12 December 2012 lasted 25 hours and was

linked to demands to uplift the suspension of three employees and to

remove the general manager of that mine. AMCU members had

expressed hostility towards him when he spoke during a mourning

Page 7

ceremony on 7 December for a driver who had died in an accident. There

was a perception that the rescue operations had not been handled with

the necessary urgency. The service later was marred by outright violence

when the NUM chairperson started to his address. A NUM Health and

Safety representative was severely injured. Disciplinary action was

instituted against a handful of those identified as being responsible.

[20] AGA claimed it decided that because it could not identify who had

prevented approximately 2150 workers coming to the surface, it was not

able to discipline anyone. However Mr W Naidoo (‘Naidoo’), who was the

Senior HR Manager for Tautona and Savuka mines, agreed that given the

events leading to the sit-in there was good reason to assume the demands

emanated from AMCU members and they were in a position to identify

who were AMCU members from the stop-orders received though those still

had to be verified. Had they wished to take disciplinary action against

them they could have, which Jacobs confirmed.

[21] Under re-examination he confirmed that there were two principle reasons

the mine did not take disciplinary action: they were unable to identify the

instigators, planners or co-ordinators of the sit-in and given the tension

and climate at the mine they did not want to add fuel to the fire and risk a

repeat incident.

[22] Jacobs also testified that management was anxious not to add more fuel

to the fire and cause a possible repeat incident. He was also emphatic

that, unlike the situation which unfolded at Moab Khotsong mine, AMCU

leadership did intervene. AGA had characterised the sit-in as a hostage

situation and not as a strike. However, Jacobs agreed that those who were

supporting the action withdrew their labour in support of their demands,

which emanated from AMCU. He also conceded that even though the

instigators were difficult to identify, those participating in the strike could

have been identified. However, under re-examination he expressed the

view that the AMCU members were the hostage takers.

[23] Mr J Mphahlele, AMCU’s general secretary (‘Mphahlele’) and Mr J Gama,

AMCU’s treasurer (‘Gama’) were called by the local leadership to assist

them, though Mphahlele remembers being called by Jacobs to say that

Page 8

there was a problem that workers were underground and he needed their

assistance, which Jacobs confirmed. After a meeting with management

both national officials went down the mine to address workers to try and

persuade them to return to the surface and end the sit-in, but were told

that the suspensions had to be lifted and the manager had to be dealt

with. Mphahlele testified that they were told in no uncertain terms of the

worker’s demands and that it was a concerted action by those

underground. He was also dismissive of the suggestion that the mine

construed the situation as different from a strike: ever since he had joined

a union the employer always had a case to argue that any partial

withdrawal of the labour amounted to a strike. When he went underground

with the Treasurer and others they did not see any hostages and workers

were singing and dancing. Naidoo said it was ‘difficult to confirm that there

was a hostage situation, but from the threats to throw some people down

the shaft and the assault on a female employee, the mine had to assume

that not everybody was a willing participant in the sit-in.

[24] Naidoo testified that workers underground escalated the pressure at

around 12h00 the next day by making anonymous calls from different

underground stations threatening to start throwing people down the shaft if

the demands were not met. It was only at this juncture that the mine

contacted the national office of AMCU and Mphahlele and Gama arrived

an hour and a half later. They were underground for two hours, but the

workers insisted not only that the suspension of the three members be

lifted, which the firm was willing to accede to, but that the general manager

be removed.

[25] It was only later at 03h00 the following morning when the mine called the

SAPS to assist and the union and management were briefed by a SAPS

senior officer from a specialist task team on how SAPS would approach

the matter that the top seven leadership at Tautona were able to persuade

workers to abandon the sit-in. Workers began to surface at 06h00. Jacobs

described the officer in question as a hostage negotiator, and was

adamant that the situation was not a strike but ‘had the making of a

hostage situation’ as evidenced by the SAPS involvement. The mine even

Page 9

paid workers for the day, though this was not something canvassed with

the applicant’s witnesses.

[26] It was also put to Mphahlele that the company could not have taken

disciplinary action because it could not distinguish between those who

were withholding the labour and those who were prevented from going to

the surface. He expressed some scepticism that there were no CCTV

cameras and could monitor events underground at that time. In any event

the mine certainly knew who was underground during the event.

[27] When asked why AGA would not have taken action at Mponeng if it was

antagonistic towards AMCU, which had achieved a majority support of that

mine, Mphahlele’s response was that it was precisely because the AMCU

was stronger at Mponeng that action was not taken against AMCU

members there, whereas by contrast AMCU was a minority at Moab

Khotsong and NUM was the majority union, which management wanted to

protect. Naidoo would not say that AMCU was a majority union as a

verification process was underway but a lot of workers reflected as NUM

members would have been ‘transitioning’ to AMCU. In his evidence,

Jacobs emphasised that for the purposes of union recognition, AGA was

treated as a single workplace despite comprising a number of mines.

[28] Mr L Nangu, AMCU branch secretary at Tautona mine (‘Nangu’), testified

that it was only when the three suspended employees had the

suspensions lifted and went down the shaft that workers agreed to return

to the surface. However, the sit-in only came to an end at Tautona when

the SAPS was called to intervene.

[29] As in the case of Mponeng, the final written warnings pertaining to the

2012 industrywide strike were only issued on 20 December 2012.

However, according to the evidence of Naidoo, an agreement was

reached with Tautona employees on the day that they returned to work

from the industrywide strike that a disciplinary sanction less than dismissal

would be imposed. Jacobs confirmed that it was conveyed that final

written warnings would be issued and that was understood even though it

was not issued to individuals at that stage. No unions were involved in

reaching this agreement. Nangu also testified under cross examination

Page 10

that by 5 December 2012, workers were aware that they had final written

warnings for the industrywide strike because it had been mentioned by

Naidoo the time of the sit-in, though he agreed that it was not in

accordance with the procedure. At Moab Khotsong mine, workers were

advised in a briefing on 19 November 2012 that they had been issued with

a final written warning for the industrywide strike. Mphahlele agreed that it

would have been unfair to take account of those final written warnings

when taking disciplinary action against workers involved in the sit-in.

[30] Of the applicants dismissed, it turned out that 39 of them did not have final

written warnings on their records. In the case of 14 of them, they were

erroneously recorded as not having returned from leave or sick leave

rather than being absent owing to being on strike, and as a result were not

issued with the written warning by mistake. However VH conceded that

the remainder were either new recruits or were on leave during the strike

and were correctly recorded as not having been issued with warnings.

[31] AGA’s version was that, what happened at Tautona was not a sit-in as

such but a hostage situation in which a couple of individuals had

prevented the shift from coming to the surface by taking the keys of the

cage from an on setter. Nangu, who went down the shaft himself disputed

this and said it was the majority of the workforce which was involved in the

sit-in. When asked how the company could reasonably have identified

those who were supporting the sit-in and those who were not, Nangu said

that the mine ought to have charged everyone who was underground at

that time and subjected them to a disciplinary enquiry. Jacobs conceded

that this could have been done as it was at Moab Khotsong.

Saturday Working Arrangements

[32] A central feature in the events which precipitated the dismissals was a

campaign to alter the terms of Saturday working arrangements. According

to various AMCU office bearers who testified this was a source of

discontent amongst workers going back at least a few years before AMCU

organised them, though Jacobs disputed this. According to Mr Motloi, a

demand for an increase in the allowance payable for Saturday work had

already been made in December 2012 at Mponeng mine. At the time,

Page 11

Motloi was deputy branch secretary of AMCU at Mponeng mine, but when

he testified he had become regional secretary of the Gauteng region. The

demand, which was the ‘most vital’ demand of several demands

submitted, was to increase the allowance to 15% of the weekly wage for

each Saturday worked. He explained that the requirements to work on

Saturdays, amongst other things, prevented miners, many of whom were

migrants from visiting their families on the weekends, which was a source

of grievance for them. Motloi also explained that since workers had joined

AMCU, they did not see why they should be bound by agreements

concluded when they were members of the NUM.

[33] Various long-standing agreements had been concluded between the AGA

and NUM, UASA, NETU, SAEWA and MWU for the each of the

Company’s business units, known collectively as the “Productivity

Agreements” and which all govern Saturday working arrangements. All of

these agreements were concluded between August 1999 and August

2008, before the advent of AMCU at AGA, and it never became a

signatory to any of them.

[34] In terms of the Productivity Agreements, it was agreed between the

Company and the above-mentioned unions that the workers would work

every second Saturday and receive additional pay therefor amounting to

10% of that day’s pay. A number of such agreements had been concluded

in respect of at Moab Khotsong, since 1998. For present purposes, the

most pertinent one was the one concluded on 4 August 2008 entitled

“Agreement on Safety, Retention and Productivity Initiative: including

Working Arrangements”. This agreement provides for a 10% premium for

Saturday work.

[35] According to Motloi, AMCU leadership was of the view that the collective

agreements were not binding on its members for various reasons. Firstly,

the collective agreements were concluded with NUM, but the employees

were now members of AMCU. Secondly, AMCU leadership disagreed

with the Company’s contention that the collective agreements were for an

indefinite period of time and could not be terminated. Lastly, in terms of

Page 12

the agreement signed in 2002 it was supposed to be reviewed by both

parties after some months, but this had never been done.

[36] During December 2012, and specifically in relation to the Mponeng Mine,

AMCU tabled a list of demands including a revision of all Productivity

Agreements, particularly those in respect of Saturday working

arrangements. An improvement to the Saturday shift allowance was

demanded in order to improve their financial conditions and to fairly

compensate them for sacrificing weekends away from their families.

[37] Discussions about the demands only ensued once a verification process

of AMCU’s membership was completed during January 2013. AMCU’s

demand was for the allowances set out in the Mponeng Agreement to be

amended from 10% to 15% for each of the two Saturday shifts worked

during any month

[38] On 15 March 2013, and arising from a threat by employees at the

Mponeng Mine that they would no longer work Saturdays, management at

the Mponeng Mine issued a brief to employees stating that the refusal to

work on Saturdays would constitute an unprotected .On the same day, the

Company’s attorneys addressed a letter to Mphahlele and Mr D

Nkalitshana, AMCU’s National Organiser (‘Nkalitshana’), advising that the

Company was aware that AMCU had planned an unprotected strike action

by its members on the Saturday shifts starting on 15 March 2013 and

continuing through 16 March at the Mponeng Mine. No mention was made

of the Moab Khotsong Mine. The letter concluded in the following terms:

“In the premises, if your members persist with the proposed strike

action, our client will issue ultimatums to AMCU members, which

shall lead to disciplinary action. We remind you that your

members already have valid final written warnings for having

participated in the industry-wide unprotected strike late last year,

and thus, further disciplinary action for the same offence will likely

result in their dismissals. Our client further reserves its rights to

launch an urgent application to the Labour Court to interdict the

strike.”

Page 13

[39] Mphahlele replied by letter the same day and repudiated any suggestion

that AMCU supported the strike action in the following terms:

“As AMCU, we have not called an illegal strike and we are not

aware of any proposed strike action, however, we are

investigating the matter and will revert back to yourselves.”

[40] Despite the letters which came to the attention of local leaders like Motloi

late on Friday afternoon, 40% of workers on Mponeng mine went on strike

over Saturday working arrangements, or put differently there was 50%

non-attendance on Friday and 30 % non-attendance on Saturday, as it

was characterised by Jacobs. Motloi candidly admitted that the workers

felt betrayed by the letter emanating from the union, though he agreed Mr

Mphahlele would not have known about the strike and that in fact the local

leadership had concealed the strike from national office bearers because

they believed they would not support it as it was unprotected.

[41] However, after local leadership had received the letters from the lawyers

and head office, the regional AMCU organiser, Mr Nthuli (‘Nthuli’) arrived

on the instruction of the national office bearers and reprimanded the local

leadership for embarking on unprotected action and warned that a number

of people could be dismissed. A meeting that took place with management

and the regional organiser together with local leadership and the union

went and addressed workers advising them to start working on the night

shift of that Friday evening. By the time the leadership went to address

workers many of them were intoxicated because they believed that they

would not be working their Saturday shifts and consequently were in no

condition to go to work. Management therefore agreed that no disciplinary

action would be taken against them for non-attendance, even though

Jacobs agreed that the ones who did not attend were striking for the same

reason as Moab Khotsong alleged AMCU members were striking on 19

and 20 April. At the meeting it was also agreed that a meeting would be

held at a higher level with Ashanti gold to discuss Saturday work within

seven days, and that an alternative Saturday would be worked in lieu of

the one where workers were absent.

Page 14

[42] The strike was called off, but the mine did suffer a loss of production. No

disciplinary action was taken against any of the employees who did report

for duty, because the union intervened in that dispute and an agreement

was reached to work an additional Saturday. Jacobs claimed that AMCU

also made representations not to take disciplinary action in this instance.

Again this was not something put to the applicant’s witnesses.

[43] The strike over Saturday work was also planned at Tautona mine, but

AGA obtained an interdict to prevent the strike on 12 April and the interdict

was complied with. In fact, the interdict also prohibited similar action at

Mponeng, but no attempt was made to extend the relief to apply to Moab

Khotsong, even though the local leadership at Moab Khotsong had

already expressly threatened not to work on Saturday 20 April and that

transport would be disrupted. In the case of both Tautona and Mponeng a

letter had been written by AGA’s attorneys similar to that written in the

case of Mponeng mine. As in the other instance, Mphahlele wrote back

denying any plans to embark on unprotected strike action and undertaking

to investigate the matter and revert back. Mphahlele agreed that given that

the strikes at Mponeng and Tautona were called off there was no reason

to take any disciplinary action against workers.

[44] By 26 March, discussions were underway in Potchefstroom with local

AMCU leadership at Mponeng mine. At that meeting management

proposed to increase the Saturday allowance by 20% to 12% of the day’s

wage.

3 to 15 April

[45] Around this time the Saturday work issue was also being raised by the

AMCU employee representatives, known as ‘the top seven’. They had

advised management as early as 3 April that members would not work on

Saturdays from 20 April and that buses would not run on that day. This

warning was recorded in an email to Mr W van Heerden from Leeuw, viz:

“Please note that AMCU reported to me this morning that they will

not be working the in-Saturdays starting from Saturday 20 April.

And this would affect the whole Vaal River region and the reason

behind this is that they have put a demand to Potch and are not

Page 15

getting response. AMCU mentioned that this is a notice to

management as they also mentioned that we need to make sure

that busses are stopped on the day of the 20th of April.

I have tried to hear from the AMCU leadership of what demand did

they put with Potch and they refused and informed that they will

share the information with us when we arrange a meeting.

We also need to follow up with the other shafts whether they have

received such a threat.

This is a threat that we need to monitored and I suppose we will

have to have a meeting with them by next week when Willie back”

The reference to ‘Willie’ is a reference to Mr V van Heerden (‘van

Heerden’). The email was addressed to Mr R Ryneke, an HR manager

reporting to van Heerden. Van Heerden saw the email and was surprised

as there never had been issues with Saturday work

[46] In a letter dated 5 April, Mr M Madondo, the general manager of Moab

Khotsong (‘Madondo’) addressed to the chairperson of AMCU at the mine

read:

“”RE AMCU THREATS

We are seriously concerned about the threats that are made by

your organisation to disrupt the shift of the 20th of April in that

members will not be coming to work.

Please note that working of Saturdays is part of an employee’s

conditions of employment and regulated in terms of a padded

agreements. Any collective unilateral withdrawal is tantamount to

strike action and we reserve our rights.

I fully rely on your co-operation and support to ensure that we

establish a good “platform” for future growth that will benefit us

all.”

(sic)

[47] Jacobs was aware of this letter at the time. Van Heerden said it was

received by representatives of the top seven without comment and they

Page 16

did not attempt to engage him on its contents.. However, there was no

attempt by the company to communicate this to the national office of the

union, even though Mphahlele testified that AGA knew that any strike

action by AMCU members needed the sanction of head office after

following proper consultations with members and the necessary

procedures for conducting a protected strike. The company also took no

steps to approach the court for an interdict prior to the anticipated

stoppage on 20 April nor were any additional security precautions taken

though Magakwe was of the view that police presence on 19 April would

have unnecessarily aggravated the situation at that stage.

[48] On Sunday, 7 April 2013, Nkalitshana specifically warned employees

against striking on the Saturday shift during the mass meeting held at the

Oppenheimer stadium, situated on the West Vaal premises a few

kilometres from the hostel. In his answering affidavit opposing a cost order

against the union in respect of the interdict, Gama specifically noted that

employees at the meeting had indicated they were not going to work on

Saturdays. He also advised them to await feedback from the meeting that

was scheduled with management on the following day. According to

Nangu, Nkalitshana also cautioned members against unprotected strike

action at the meeting on 8 April 2013. Van Heerden heard about the

meeting and that there was a call for members not to work on Saturdays

[49] On Monday, 8 April 2013, high-level meeting was held between AGA and

AMCU representatives from the West Wits region, as well as Nkalitshana

and Nthuli, at which the proposals for increasing the allowance for

Saturday work were discussed. Jacobs claimed that Moab Khotsong

leadership was supposed to attend the meeting but no transport was

arranged for them, a point never raised with the applicant’s witnesses. The

minute does refer to a general complaint that transport was not arranged

for ‘the AMCU delegates’ but makes no reference to Moab Khotsong

delegates as such.

[50] According to Motloi, emotions were running high at that meeting, a point

confirmed by Nangu. Jacobs was among the management representatives

present at the meeting. According to Nangu, the AMCU representatives

Page 17

advised that workers would not work on Saturday 20 April at Mponeng and

Tautona mines and Jacobs became angry and left the meeting at that

point. In his affidavit Nkalitshana denied that the threat was made to

withhold labour on Saturday shifts unless the demands were met. Rather,

he claimed that he had emphasised that the issue of Saturday work was a

burning issue and there had been no progress on the matter. He was

concerned that if the company continued dragging its feet in the

negotiations, employees might go out on an unprotected strike on their

own accord. However, the minute of the meeting reflected that:

“AMCU stated that the agreement in place is with NUM and is not

binding. AMCU has 70% membership in the West Wits. AMCU

also indicated that their members will not work Saturdays until the

matter has been attended to.

Management noted the threat to withdraw from Saturday work and

indicate that legal advice will be sought and that legal action would

be taken if AMCU continues with the threat”

Jacobs claimed he understood that the threat by AMCU referred to the

whole business despite it being prefaced by the reference to AMCU’s

majority status in the West Wits region.

[51] Following the meeting, in an email on 08 April to Naidoo, Nangu tabled

demands from the AMCU Tautona branch in respect of Saturday work

and requested another meeting to discuss it with management, viz:

“We as AMCU leadership, we have demanding a production shift

of 15% in Saturday. It is a resolution that has been taken by

AMCU leadership at the West Wits region. And also we would like

you to give us an agreement on hours of work and working

arrangements, because we believe that the agreement that you

had is being expired.”

Once again, Jacobs interpreted this to be a clear indication of a withdrawal

from Saturday work in the South African region of AGA.

[52] Nangu related that the mood of local leadership was hostile to the advice

of the National organiser, Nkalitshana, which was that the matter should

Page 18

be processed through the CCMA and they should not take action.

Mphahlele said that AMCU leadership had expected the members to heed

national leadership’s call not to embark on unprotected strike action.

[53] Jacobs claimed that he spoke to Mphahlele on 9 April to express

Management’s concern about the ‘general’ threat of strike action and

calling on him to intervene. Mphahlele undertook to investigate and revert

to him but indicated that Saturday work was a problem for AMCU because

it was not a party to the agreements governing Saturday work. Jacobs

claimed that Mphahlele did not revert to him.

[54] On 10 April, a letter from AGA’s attorneys very similar to the one issued in

March was sent to AMCU in relation to anticipated action at Tautona and

Mponeng. The letter also sought an undertaking in writing from the union

to be sent by 16H00 on 10 April 2013 confirming that labour would not be

withheld.

[55] As with the earlier incident at Mponeng mine, Mphahlele responded in kind

with a similar letter. He also agreed that Jacobs did phone him when there

were problems and but he could not recall exactly what was discussed

when he was phoned about the incidents at Tautona and Mponeng mines.

He confirmed that the company had his number, and that of the AMCU

President and Treasurer as well as their email addresses. He did not

dispute that Jacobs could have spoken to him on 9 and 10 April about

averting the strike over Saturday work at Tautona and Mponeng mines.

However, he could not recall if Jacobs had said anything on those

occasions about what was happening at Moab Khotsong mine. Mphahlele

said that the union expected that on important issues like the one giving

rise to this trial management ought not to simply have dealt with the local

leadership consisting of the top seven, but should have involved the

national leadership of the union as well. Whether this did happen was

canvassed further after Jacobs claimed in his evidence that he had

spoken to Mphahlele on 16 April about the unfolding situation at Moab

Khotsong. This is discussed elsewhere.

[56] Mphahlele stated that the union’s approach to strike interdicts, which it

adopted a long time ago, was that if members embarked on an

Page 19

unprotected strike the union would not defend it, but would try and find a

solution with the employer to end the impasse. In his initial evidence in

chief, Mphahlele said that AMCU did not receive a similar request or

notice of an interdict in respect of Moab Khotsong: “… It was just a dark

page, we did not receive anything.” He further said that if AGA had issued

ultimatums and contacted him about an alleged illegal strike at Moab

Khotsong, he would have called Jacobs and the relevant management

structures at the mine to see if they could discuss the issue and assist.

[57] On 11 April there was an AMCU meeting held at the Itireleng hostel at

16h00. According to van Heerden approximately 220 individuals attended

and one of the issues discussed was that workers should not work on

Saturdays.

[58] On 12 April, AGA obtained an interim interdict prohibiting the impending

strike action at Mponeng and Tautona mines pending the outcome of a

dispute over the interpretation and application of the Saturday work

agreements. Once Nangu became aware of the order, he obtained a

loudhailer and warned workers to report for duty on the Saturday shifts.

When asked to explain why he did that, he answered:

“Reason being: what I noticed that there was a labour court

interdict, labour court interdict. And the letter of Jeff Mphahlela I

did read it on the day. Then I realised that if ever I can just leave

the workers not to report on duty they can be on trouble. Let me

tell them to go and clock in.”

[59] A little further on in the cross-examination the following exchange occurs:

“So, in the face of the interjection and in the face of this threat

from Ms Hart you did the right thing by getting your members back

to work. --- I realised that it is the right thing to get the members

back to work as per court interdict.”

[60] AGA contended that precisely because the strike was averted, there was

no need to take any action against workers, which was completely

different from the situation at Moab Khotsong where the local AMCU

leadership did not call off the strike.

Page 20

[61] On the issue of the attorneys’ letters sent to AMCU head office in respect

of Tautona and Mponeng, Jacobs conceded that one of the considerations

in sending the letter was the perceived disjuncture between local and

national leadership on the Saturday work issue. Jacobs attempted to

explain that the reason this course of action was not followed when the

same dislocation presented itself at Moab Khotsong was because AGA

had got the position of the national union at the meeting on 8 April and he

had discussions with Mphahlele on the 10th and 12th of April, coupled with

the fact that the course of action they had taken at the other mines was

clear. When tested on the fact that those conversations related to

Mponeng and Tautona and that Moab Khotsong was not mentioned,

Jacobs trying to explain that they took place in the context of a concerted

effort to engage the union generally about the issues of Saturday work.

However, he did concede that the letters in the case of Tautona and

Mponeng had been instrumental in stopping those strikes.

[62] Jacobs was also challenged on AGA’s version that it was uncertain if

anything was likely to happen because there was conflicting information

about whether action could be expected on 19 and 20 April. The factors

indicating that it strike action could reasonably be expected were ,

amongst other things: the threat made on 3 April; the AMCU mass

meeting held at the hostel at 16H00 on 11 April at which one of the issues

discussed with members was that workers would not work on Saturdays;

the top seven’s refusal to discuss the Saturday work issue when

management raised it at the meeting on 18 April; the briefing issued by

Madondo, which was announced repeatedly over three days, and the fact

that AMCU had made another request for a meeting at the residence on

19 April.

On 15 April a meeting took place between Moab Khotsong management

and AMCU local leadership at the mine comprising the ‘top seven’. No

regional or AMCU representatives were present, unlike the meetings at

the West Wits region. Management representatives included Madondo

and van Heerden. According to Jacobs, the report he received of the

Page 21

meeting was that AMCU leadership was not willing to discuss the

Saturday work issue with management. 16 April 2013

[63] On 16, 17 and 18 April 2013, the company used the assistant

communications officer, Mr I Mokhoke, ironically nicknamed ‘the DJ’ to

make repeated announcements on all shifts about management’s

concerns about a possible boycott of Saturday work. Mokokhe explained

that the standard procedure was for management to issue a brief to him by

email and he would translate it if necessary. He would then type and print

it. He testified that the PA system was next to the lamp room alongside the

shaft and there were speakers in the walkway and the change room. He

would repeat the announcement every ten minutes and in the case of

important notices would do that over two days. In this instance, the script

he read from stated, amongst other things:

““It came to management’s attention that AMCU is not in favour of

working the Saturday shifts as from Saturday, 20 April 2013.”

He went on to announce that:

“This is a serious concern to all of us, as Saturdays are part of our

employees’ conditions of employment and regulated in terms of

current agreements.”

It went on to say:

“Any collective unilateral withdrawal is similar to strike action and

Management reserved its rights to take the necessary action when

people do not adhere to existing agreements.

I fully rely on your co-operation and support to ensure that we

work together on this and other matters in order to build a future

that is to the benefit of all employees and our organisation ”

Mokhoke added his own personal flourish to the briefing mentioned above

by using a colloquial Sesotho expression that workers who did not come to

work on Saturday would ‘smell like skunks’.

[64] Van Heerden said that the intention of the brief was to remind the workers

about the agreements on Saturday,that they were binding and should be

complied with. Although he was asked if the briefing was prompted by the

Page 22

threat made at the meeting of 3 April, he said it was the discussions with

AMCU local leadership the previous day which had prompted the issuing

of the brief. Mphahlele conceded that Management at Moab Khotsong had

been proactive in communicating with AMCU members at the mine, but he

nonetheless believed that those issues were not dealt with the national

office of the union, as had been the case at Mponeng and Tautona.

Jacobs was of the view that even though an ultimatum had not been

communicated to workers on 19 and 20 April, the briefing issued by the

mine earlier in the week pre-empted the need for doing so.

[65] In the case of Moab Khotsong, there was no legal action launched prior to

the anticipated strike, nor was there any communication from AGA’s

attorneys to AMCU similar to that in the case of the other mines on 15

March and 10 April.

[66] Jacobs testified that AGA had decided to follow a different approach in

dealing with the situation at Moab Khotsong. He distinguished the situation

from Mponeng on the basis that in that instance there had been interaction

between AGA’s attorneys and the national office on the day of the strike,

whereas at Moab Khotsong they had a number of days when they saw

that the matter was looming. They requested AMCU leadership, with

whom it was building a relationship, to intervene as it believed there was

time for them to do so. Later, he elaborated that the mine had chosen to

go “a briefing route” which they felt avoided the need to issue ultimatums.

The mine also believed that the union would have understood that an

interdict was an option, but in this case they had been given more time to

intervene.

[67] Under cross-examination, Jacobs was tested on why Moab Khotsong was

excluded from the interdict on 12 April given that at that stage an express

threat of a strike had been issued by local AMCU leadership at the mine.

Although he tried to partially explain that this was a reflection of the

different approach adopted at Moab Khotsong, he could not dispute that

his discussions with Mphahlele at that point had only specifically dealt with

Mponeng and Tautona. The other explanation he offered was that the

strike at those two mines was imminent at the time the interdict was

Page 23

brought. It still does not explain why a similar interdict was not brought at

Moab Khotsong when the strike was imminent there, rather than after the

fact.

[68] When Jacobs gave his evidence in chief he testified that he phoned

Mphahlele on Tuesday, 16 April 2013. When Mphahlele was cross-

examined, this potentially critical communication was not put to him, nor

had it been pleaded even after the company had amended its statement of

response. In his evidence in chief Mphahlele said that to the best of his

recollection the only time that he became aware that action was being

taken against AMCU members at Moab Khotsong was when members

were already dismissed.

[69] Jacobs claimed that when he had spoken to Mphahlele on 16 April he had

expressed AGA’s concern about the threats to boycott Saturday work and

that he had reminded him of the legal action taken at the other two mines

in respect of similar threats. He further claimed that he had appealed to

Mphahlele to intervene so that AGA did not have to follow the same route

and expressed AGA’s willingness to engage with AMCU on the issue. He

also said that he conveyed the ramifications of strike action for the union

and its members, though he expressed this in the vaguest terms.

Understandably, because this alleged conversation of 16 April had not

been put to Mphahlele, the applicants contended this was simply an

afterthought by Jacobs and a fabrication. Jacobs could not offer an

explanation why this conversation was not mentioned even when the

company sought leave to withdraw its admission there had been no

contact with any union official to discuss the course of action it intended

taking. He also had no explanation why the company did not seek an

admission from the union that this conversation took place at the same

time it requested other admissions from the union about what took place

on 16 April.

[70] Subsequently, AGA successfully applied to reopen its case to deal with

this issue by recalling Mphahlele.

[71] When AGA reopened its case, Jacobs introduced fresh evidence of an

alleged email sent to Ms M Hart, the respondent’s attorney (‘Hart’),on the

Page 24

same date as the conversation, advising her of the set down of the CCMA

dispute concerning the interpretation and application of the collective

agreements regulating Saturday work. Jacobs also recorded in that email

that he had a ‘telecon’ with the AMCU general secretary that morning “…

to indicate that I will formally invite them to an engagement process

regarding Saturday working arrangements.” Mphahlele could not recall the

content of the discussion but contended that if Jacobs had indeed asked

him to intervene, then he would have as he did in the other disputes and

the fact that he did not intervene meant that Jacobs could not have made

such a request. Mphahlele did recall that there had been a telephone

conversation with Jacobs concerning a formal engagement with AMCU

about the Saturday working arrangements but only in general terms. He

was more insistent that he could not recall one dealing with the specific

situation at Moab Khotsong. He agreed it would have been a good time for

Jacobs to raise the issue with him, but was confident that if he had done

so, the union might have done something about it. He could not

understand why the union would have reacted differently to the way it had

acted at Mponeng and Tautona if Jacobs had communicated as clearly

with him about Moab Khotsong. Though he could not recall the contents

of that conversation he was emphatic that he did not recall any discussion

of the situation at Moab Khotsong and would have remembered it if

Jacobs had told him that workers at Moab Khotsong were planning to go

on strike. If he had told him that on 16 April he would have gone to Moab

Khotsong the next day

[72] Unlike the pattern of interactions between Jacobs and the AMCU national

office that characterised the dealings in respect of the Saturday work issue

at Tautona and Mponeng, there was no letter sent by AGA’s attorneys

putting the union on terms and threatening legal action if an undertaking

was not given. When he was cross-examined after the company had re-

opened its case and after Mphahlele had already been questioned for the

second time, Jacobs added a new dimension to his previous testimony.

He now claimed not only that he had discussed the situation at Moab

Khotsong with Mphahlele and the latter said he would investigate and

revert to him. This was not canvassed with Mphahlele at any stage.

Page 25

18 April 2013

[73] On 18 April 2013 at 08h30 a meeting was held between Moab Khotsong

management and the top seven, which only ended at 14H30. On this

occasion, Madondo was not present. A lengthy discussion on a whole host

of issues ensued, but it was only right at the end of the meeting that the

following brief entry relating to Saturday work appears:

““Willie [van Heerden] requested frankness about the stance on

Saturday work. He states that if it makes the committee uneasy to

discuss the issue, he apologises. However, he needs to

understand the issue. AMCU replies that the Saturday work is not

on the agenda and that there is unfortunately no time. Willie states

that he takes it that they are not prepared to talk about it”

Van Heerden said he was trying to approach the leadership in a non-

confrontational way and he was trying to set the scene to get their

response. He was prepared to discuss the issue till late if necessary and

was disappointed by their response. Nonetheless he claimed he did not

get the impression the action previously threatened on 3 April would occur,

but characterised it as a ’50-50’ situation. Had he thought they would

proceed he would have raised it with his superiors and asked them to take

it up with the union at at national level. He did report to Jacobs in any

event that there was a likelihood of a strike. Jacobs claimed that based on

this report, which he received, , “it was anyone’s guess at the time”

whether that was an indication that the workers would embark on action.

He also claimed that given his discussions with Mphahlele, the action they

had taken at Tautona and Mponeng the previous week, and the security

reports they had received did not lend themselves to suggest any action

was imminent, but on the other hand he said it was “conflictual” whether

there would be action or not. It was only the following day at around

18H00 that he received a call that buses were being prevented from

transporting workers and there would be no night shift. Van Heerden felt

that meeting was the first he had had with the AMCU leadership where he

felt he could start building a relationship with the group, but was unsure if

they would “really go ahead with their intention and threat not to work” on

Page 26

Saturday and he reported that for the second occasion they would not

discuss the issue to Jacobs.

[74] On the same day a Mining notice (no 003171) was issued by the Inspector

of Mines terms of Section 54(1)(a) and (b) of the Mine Health and Safety

Act, 1996 (‘the section 54 notice’) because certain dangerous

occurrences, practices and/or conditions had been observed by him at the

Moab Khotsong Mine. Madondo testified that in 2012 there were nine

stoppages on account of such notices being issued by Mine Inspectors

and 13 in 2013. What had given rise to the notice was a fall of ground on

17 April at 92 level of the mine which had resulted in a reportable injury

being sustained. En route to the scene of the accident a caboose on

which a train guard sits was derailed by a stone on a track switch and the

Inspector ended his underground visit at that point and conducted an audit

of various safety practices followed underground.

[75] Notable features of the section 54 notice stated that:

75.1 The section 54 notice applied to “ALL” sections of the Moab

Khotsong Mine;

75.2 The Inspector of Mines scored the “Overall Outcome of Risk

Analysis” as an “8” under section B of the section 54 notice under the

heading “Summary of Risk Analysis”. In terms of the section 54

notice, an overall score between 7 and 16 is “applicable to all

workings on a mine”;

75.3 The instructions issued by the Inspector of Mines to the Moab

Khotsong Mine under section C of the section 54 notice, were that:

“1. Competent “A” persons to be retrained and re-

assessed in the correct procedures of declaring work

places safe. (NB:- Crews to be removed from the

working places to a safe place.

2. Miners, Shiftbosses and Mineoverseer to be re-

trained and re-assessed in the over inspection of the

safe declaration book.

Page 27

3. Rail Bound Equipment to be halted until

investigations, remedial actions and presentations

made to the Principal Inspector.

The employer is further instructed to jointly with

member(s) of health and safety committee or unions; fix

the deviation(s); conduct comprehensive audit for similar

deviation(s); investigate reasons for system failures and

institute an action plan to prevent further recurrences of

system failures.

This instruction shall remain in force until such time that

the employer has complied with the instructions and

presentations made to the offices of the principal inspector

of mines by the said employer and the members of health

and safety committee or unions”;

[76] The mine, supported by both AMCU, NUM and UASA safety

representatives, had sought to limit the Inspector’s instruction to a more

limited investigative scope in terms of s 55 of the Mine Safety Act relating

to the derailment incident but was initially unsuccessful. On 18 April 2013

at 17h00, Madondo issued what is known as a “Red Note” to all

employees, in terms of which inter alia “all crews [were] to be removed

from working places to a safe place” and “for this reason all employees

must proceed to their respective waiting places, conduct safety meeting

and wait for further instructions from their supervisors. No person will be

allowed to enter his working place except for essential services;”

Supervisory staff were directed to report for training. During the course of

2012, apparently 12 such notices were issued and the instructions in the

Red Note of 18 April 2013 were fairly typical. It was also not disputed that

provided workers reported to their waiting places or for training they would

be paid. Jacobs testified that the night shift on that Thursday and morning

shift the following day reported for duty as usual.

[77] According to Madondo, the Red Note did not apply to employees involved

in equipment maintenance, construction and other activities but the vast

majority of the applicants were involved in the physical mining activities.

Page 28

However he testified that the crews were still required to attend to

remedial operations to deal with the rail conditions identified in the note,

which would involve cleaning and loading mud in the haulages and

particularly in the cross-cuts into specially arranged bags to make the

tracks safe. If the teams did not report for work, the start-up would be

delayed by the need to take the remedial actions. He contended that this

type of work was contemplated by the terms of the s 54 notice which

mentions remedial action being taken, fixing deviations, and employees

waiting for further instructions. The other purpose served by having all the

teams at the waiting places is that they could immediately be engaged in

other work if the s 54 notice was lifted because they could be contacted by

phone.

[78] The mine and the unions also made further representations that day to the

Principal Inspector of Mines; in respect of the mine.

[79] Neither the existence of this notice nor the effect it had on normal

operations of the mine was disclosed in the founding affidavit supporting

AGA’s interdict application, so the court considering the interim application

on 23 April 2015 had no inkling of this obviously complicating factor

affecting the very issue of whether a strike had occurred on 20 April 2015,

which ought to have been disclosed by AGA.

[80] AGA contended that this did not mean the mine was shut down

completely. Mphahlele’s response to this suggestion was that once the

individuals identified for retraining in the notice were not at the workplace,

the mine could not function. Although this was not put to Mphahlele,

Jacobs claimed that there would be supervisory personnel available

because training was done on a staggered basis. Further, the requirement

that all teams working a shift had to be removed to a safe place meant that

“everybody was off.” When this issue was canvassed with Mphahlele

under cross-examination I asked AGA’s counsel, Mr Lennox if it was the

mine’s position that people were supposed to be doing their normal duties

underground on 20 April, and he clarified that it was not suggested that

they would be performing normal duties underground. When pressed for

an answer whether the mine was closed or shut down by the notice,

Page 29

Mphahlele responded somewhat exasperatedly by making an analogy with

the court:

“How can you operate in this room, I am not asking a question, I

am trying to illustrate my answer. If all of us here including the

honourable judge had to evacuate this rule, can this room be

functional? Can the matter that is said to be conducted in this

room still continue? No, there is nobody in here.”

[81] Counsel was advised to put to Mphahlele the specific facts, which formed

the basis of AGA’s proposition that the mine was not shut down.

Mphahlele was then cross-examined on the significance of the instruction

in the general manager’s Red Note to employees to go to their waiting

places, conduct safety meetings and wait for further instructions from their

supervisors. Mphahlele accepted that it was a lawful instruction to tell

them to wait somewhere while safety talks were conducted, but this did

not detract from the fact that the mine would be shut down. He denied that

if workers did not go to the working places they were withholding their

labour.

[82] Mphahlele was also questioned about certain correspondence issued by

Madondo in the week after the shutdown in which he plainly believed that

workers had been unfairly dismissed for not going to work on a Saturday

when they were not ordinarily supposed to work, in which he made no

mention of the section 54 notice. What is apparent from a media release

issued by AMCU on 9 May 2013 is that the union was aware at that stage

that a section 54 notice had been issued. In the narration of events leading

to the dismissal of the applicants, the press statement contained the

following passage:

“Based on the above the mine was supposed to be non-

operational. This alleged unprotected industrial action could have

been converted should the mine have communicated with the

workers at the mine’s under section 54 hence there should have

been no Saturday working in.”

Page 30

Mphahlele confirmed that these communications reflected what AMCU

perceived to be the situation at the time. In trying to explain why the union

did not oppose the confirmation of the temporary interdict on 7 June,

Mphahlele said that the union had no objection to the prohibition of

violence and it would have been foolish to oppose that.

19 April 2013

[83] On the morning of 19 April, when employees, like Mr K Ndlovu, a team

leader (‘Ndlovu’), arrived for the day shift they learnt that the previous day

the Department of Minerals and Resources (‘DMR’) had issued a notice in

terms of section 54 of the Act. In his case he was advised to go to the HR

manager who then told him to report for training at the gateway training

centre. Team leaders and other supervisory Mine personnel, known as

‘Competent A’ staff, were required to undergo refresher training on 19 and

20 April 2013 whilst the red notice was in operation.

[84] From Ndlovu’s evidence it appears that the gang registers of all miners

who would have been on duty on Friday, were marked with the letter ’B’.

[85] On Friday, 19 April 2013, AMCU called an unauthorised meeting at

approximately 16:00 at the Itterileng residence. A request for a meeting

that day had been turned down by management because there was no

venue available according to van Heerden. Mr G Tiyo (‘Tiyo’), a winch

operator, claimed he was at work when he was told by NUM shop

stewards to stop working and go to the Oppenheimer Stadium to attend a

meeting because Marikana ‘people’ had got an increase so they should

demand more money too. Somewhat confusingly he also claimed he went

to the training centre but had to obtain a visitor’s permit from HR to gain

access to the training.

[86] At around 16H30, Mr A Leeuw (‘Leeuw’), a senior human resources officer

said he received a call from the branch secretary of the NUM, Mr H

Sosikela saying that AMCU had held a mass meeting at the hostel and

AMCU members had gathered at the bus terminus and were intimidating

employees who wish to go to work. During the course of the trial video

footage of the bus terminal outside the hostel was viewed. What the video

showed apparently was a bus waiting from about 16h09 at the terminal.

Page 31

Around 16h53 people start streaming from the hostel and a group of

approximately 50 or more head for the terminus and gather together next

to the passenger entrance of the bus. Rohr identified certain of them as

AMCU members, but could not say that none of them were NUM

members. However, in his experience, given the rivalry between the two

unions it was unlikely members of one union would associate themselves

with a strike called by the other unless it was a protected strike.

[87] Mr D Magakwe, District Security Manager for Vaal River Anglo Gold

Ashanti (‘Magakwe’) went to the residence after hearing about the

gathering at the bus terminal at about 17h00. He saw the group toyi-toying

near the bus and addressed them using the loudhailer of the security

vehicle. He told them what they were doing was unlawful and he would

arrange for them to speak to a manager if they wanted to. The response of

the group was that they would not desist because they wanted more

money for working on Saturdays. He confirmed that members of the top

seven were amongst the group at the scene. He claimed that he had

spoken to the driver of the bus at the bus depot after he had returned from

the terminal and was told he was scared sitting in the bus because people

were threatening him. Oddly, he was unaware that anything might have

been brewing in relation to the Saturday work issue until he saw the

briefing issued by Madondo a day or two before. He conceded that the

driver did not leave because there was a security and police presence.

[88] Other footage from another camera shows a few people raising sticks as

they dance. No one boarded the bus and after about 10 more minutes it

left. Later some of the group moved to dance in the street entrance to the

transport terminal. Still later at about 18H20 AMCU can still be seen

dancing in the loading platform area of the terminal. Intermittently, people

can be seen boarding taxis, but no bus appears. Rohr confirmed that no

buses entered the terminal after that he said that drivers were scared as

they believed they were in danger due to the group that did not want

anyone to board a bus. Mphahlele disputed that there was anything

threatening about the situation portrayed on the video which meant he

showed people dancing around under the cover of umbrellas on what was

Page 32

a rainy day. The bus eventually drove off peacefully and there was no

suggestion of any disturbance or disruption.

[89] Various photos showing individuals on 19 April some wearing balaclavas

and some with sticks or carrying stones in the vicinity of the entrance to

the transport hub near the hostel were also introduced in evidence. Under

further cross-examination Mphahlele did concede after viewing

photographs of the episode that some members of the crowd were

carrying sticks, but argued that, that was not necessarily indicative of them

being in a fighting mood. He also queried why, if indeed the situation was

threatening, the company did not station security personnel at the bus

terminal.

[90] Evidence was also given by a former bus driver, Mr J Pule (‘Pule’) of what

he witnessed that afternoon from the transport depot situated near to the

transport terminus at the hostel. He was waiting at the depot after

completing the transport of afternoon shift workers from the hostel to the

shaft around midday. It transpired that his last trip at around 17h00 had

been to collect workers coming back from the shaft that afternoon. Before

he knocked off work at around 18H30 he saw people carrying

knobkerrie’s, sticks and irons singing at the bus terminus. He claimed that

they were singing in Xhosa that “tomorrow is Saturday we are not going to

work” and adding that they were going to “kill all the drivers”. He claimed

that he had reported this to his supervisor but could not explain why this

report was not mentioned in the company’s synopsis of events, nor why it

was not mentioned in an affidavit in support of the interim interdict dealing

with events at the transport terminus. He also did not address himself to

the question put to him why the driver of the bus waiting at the terminus

would have waited so long if such threats were being made to him. He

claimed not to have heard Mr Magakwe addressing the crowd over the

loudhailer either. He had experience of the events during the gold industry

strike of 2012 in which stones had been thrown at buses and one of his

colleagues had to be taken to hospital after being injured by a stone.

[91] In any event, Jacobs testified that the company had decided to stop the

buses after seeing the events which unfolded late that afternoon at the bus

Page 33

terminal. The decision was also influenced by what had happened during

the strike in 2012 when buses had been stoned and there was an attempt

to set a bus alight. He was dismissive of the suggestion that the decision

was influenced by the effect of the section 54 notice on operations.

[92] Jacobs claimed that he made two calls to Mphahlele in the evening of 19

April, when he learnt of the strike. Mphahlele did not take either of the

calls, but Jacobs said that he left a detailed voice message in which he

reiterated AGA’s concerns, referred to their previous discussions and

again requested Mphahlele to call him back and intervene in the matter.

[93] According to Leeuw the NUM general secretary, Mr F Baleni, had sent an

SMS to Jacobs advising him that NUM members would not lose their

Saturday earnings on account of an unprotected strike by AMCU

members.

[94] Jacobs claimed that once he learnt of the events that evening he made

“about two calls” to Mphahlele in the space of an hour which he did not

take. In one he left a detailed message about their concerns and the

previous discussions and again requested him to call him back and

intervene in the matter. Mphahlele did not revert to him.

20 April 2013

[95] Leeuw said he was called again at just after 04H00 by Sosikela who

complained that NUM members were being assaulted on their way to

work. An ambulance had to be arranged to hospitalise one NUM member

who had been badly assaulted.

[96] Video footage was shown of the entrance to the helipad area taken from

around 06H00 that morning. Small groups of people can be seen entering

from time to time. Rohr testified that these were workers who had

responded to the announcements made from security vehicles advising

people that they could report to the helipad. Ms M Bezuidenhout, a

Security Superintendent at the Services Department at Anglo Gold

Ashanti Vaal River (‘Bezuidenhout’) was posted at the helipad that

morning to monitor those workers who reported there, who numbered

207 in all by the time she left at 14h00. The cut-off time for reporting

Page 34

there was 07h30 and no-one reported to the helipad after that.

Bezuidenhout also confirmed that the facility of reporting to the

helipad was not available for the night shift workers on the previous

evening. She did not have an explanation why two AMCU members

who had reported to the helipad and whose details were captured on

the list had nonetheless been dismissed. It is common cause however

that they were reinstated at an early stage and withdrew their unfair

dismissal claims.

[97] Further footage of the loading platform at around 07H43 shows a sizeable

group of workers gathered at the platform of which about twenty break

away and head towards the security complex and later shows them

directed back to the hostel by security personnel. A few of them appeared

to be carrying sticks. In further footage around 08h00 the group can be

seen returning to join others still gathered at the loading platform. An hour

later, the group is still gathered there, which Rohr testified was not normal.

[98] Madondo testified about a meeting held mid-morning on 20 April at the

mine with local NUM leadership. Leeuw also attended the meeting but did

not give evidence on it. The minutes of the meeting reflect NUM

complaining about management’s failure to act on NUM’s previous

warnings that AMCU was rumoured to be planning to stop busses in

support of their campaign against the Saturday working arrangements.

The minute also reflects that Madondo told the NUM representatives that

he had met with one of his security personnel earlier in the week “…in

relation to security of our employees who will be reporting to work.”

Madondo confirmed that he had spoken to his senior security officer about

the rumour and because they had previously experienced incidents of

intimidation focussed on the busses in 2012, the mine was very

concerned. The representatives said that NUM members could not

proceed to work and it was no fault of theirs.

[99] A few of the applicant’s witnesses testified that they had reported for work

on Saturday, 20 April 2013. Makwekwe, a rock driller, (‘Makwekwe’)

testified that, on the Saturday, he clocked in at 04h29 and out at 12h03;

that he was told by his supervisor that they were not going underground;

Page 35

and that he spent the shift working on the surface, loading goods and

cleaning. Mr Mzileni (‘Mzileni’), who did not live on the mine premises and

either travelled directly to the mine or travelled to the hostel and took the mine

bus to the shaft testified that , he went to the mine on Saturday, but did not find

many people there because the mine was temporarily closed by the DMR; and

that he clocked in and then went home. He did not find any transport at the hostel

and arranged for someone to give him a lift to the shaft. His clocking records

showed that he clocked in at 05H56 and out at 06h42. He went to the shaft but

did not go underground to work. At the end of his testimony, the company

tendered to reinstate him with retrospective effect because he had gone to work

and had attended a disciplinary enquiry and advanced his defence. The tender

was accepted. Another witness ‘WA1’ who testified in camera, said that on the

Saturday, it did not appear to him that the mine was operating as there were a lot

of people outside at the dressing stations; that his shift was not working because

his clothes had not been washed and the wheels of the headgear were not

moving; and that he had clocked in at 03h30 and out at 04h30. Madondo said

that the fact the headgear on the shaft might be motionless did not mean the

mine was not working and speculated that W1 had arrived late for his shift, but

W1 was never challenged on this aspect of his evidence. Machonga could not

comment on WA1’s version as he was underground.W1 did agree that in terms of

the Red Note he was obliged to report for duty, as he in fact did. Although the

company did not accept that he tendered this explanation at his disciplinary

enquiry or on appeal, it did accept that he had reported for work on nineteen and

twenty April and had attended the disciplinary proceedings. He also accepted a

tender of retrospective reinstatement to the date of dismissal, which was made at

the end of his testimony.

[100] Lebodi travelled by car with four other NUM members from the town of

Khuma some 20kms away to the Itireleng residence to catch a bus. They

arrived early that morning at 04H00. There were no buses but there were

persons singing. He claimed that the driver of the car he had travelled in

advised that they would travel to the shaft via the hostel because there

had been a meeting the previous day and they should attend a meeting at

the hostel before going to work. They would then board buses for the

shaft. When no buses had arrived by 06H00 he took his bag from the car

and went home with one of the other occupants. The driver supposedly

showed no interest in taking them in his vehicle to the mine. He claimed

Page 36

ignorance of the meeting of the previous day and denied that AMCU

members were at the forefront of a campaign against Saturday work. He

denied hearing anyone announcing on loudhailers at the Itireleng

residence that people who could not get to work could report to the

helipad, or seeing anyone gathered there when he walked past. When

asked under cross-examination what efforts he made to establish when a

bus would be coming he claimed that he had phoned a certain Samuel,

who was an assistant HR manager at the shaft to find out what was

happening with the buses. Samuel told him he did not know what was

going on and would phone him back but he never did. Lebodi further

testified that he went home by getting a lift in a taxi that was on its way to

Klerksdorp and there were no other vehicles going to the shaft he could

have approached for a lift. As far as he was concerned the only transport

from the hostel to the shaft was by bus and there was no transport by taxi

to the shaft. There was evidence on video footage taken on 19 April that

taxis also came to the rank and Rohr testified that they travelled to the

business units and to the local communities. Van Heerden also claimed

that a number of hostel residents got to work and that miners got taxis or

lifts with friends. Although Lebodi was challenged on the discrepancies

between his original account of what he told the chairperson at the appeal

hearing and his later version in which he added the details of travelling

with other people to the hostel, essentially his version was that he had

gone to the hostel to get transport but none was available, which was

broadly consistent with the summary of the explanation he gave at his

disciplinary enquiry that appears on the record of his enquiry. .

[101] At 06H45, the local NUM secretary had reported to Leeuw that the mine

had failed to provide security or transport for NUM members. When they

arrived there were no buses. Mr Mere (‘Mere’), who stayed at the hostel,

claimed that he went to wait with other workers for a bus at the bus rank

from 11h00 that morning but waited ‘long after’ 12h00 for bus and

eventually returned to the hostel when none came. His afternoon shift was

due to start at 12h00. He claimed to know nothing of any strike and was

out of touch with what transpired at union meetings because of his shift

pattern which meant that fellow hostel dwellers were asleep when he

Page 37

returned from work and had gone to work when he woke up. He claimed to

be completely ignorant of the warnings issued by the top seven to

management about what would happen that day, nor did he hear Mokokhe

reading the briefing on 16, 17 and 18 April. He also claimed to have heard

nothing about the AMCU mass meeting on 19 April when he returned to

the hostel at around 22h00 that night. He did concede that the night shift

had not gone to work and when his bus arrived at the hostel, they did not

alight at the rank where there was a group of people gathered, but denied

seeing them being armed with sticks or knobkerries’, or wearing

balaclavas. He simply went about his private business, without making any

enquiries and went to sleep. He was also oblivious to a raid by security

personnel looking for weapons at the hostel which took place in the small

hours of the following morning. He also did not hear any announcements

being made by security personnel using loudhailers to say that anyone

unable to get to the shaft on Saturday should report at the helipad. The

most he would concede is that there were more people than usual at the

hostel that Saturday. He claimed to have waited for the bus for the night

shift on Saturday, which never came and he did not get a taxi because

there were no taxi’s running from the residence to the shaft. At a certain

stage during his testimony Mere was confronted with a defence he

apparently gave to the chairperson of the appeal hearing in which he had

said that apart from there being no transport he was afraid to go to work.

At this juncture the witness had difficulty remembering what he said and

asked for a brief adjournment to recollect his thoughts. After the

adjournment, the allegation was made that during the adjournment he had

gone to the toilet and a number of other AMCU members were heard

coaching him on what to say. He denied this. When the court adjourned I

specifically asked that only Mere should leave the court, but noticed that a

number of other persons in the public gallery also left. Later in the

proceedings, the Senior Security Official Mr Molokela who had witnessed

the interference with Mere confirmed what had happened and his account

was not effectively disputed.

[102] Jacobs claimed that he phoned Mphahlele again early on Saturday

morning at about 07H00 and told him that unprotected strike action was

Page 38

under way, that there had been violence, and requested him to intervene

because the situation could spiral out of control. According to Jacobs he

specifically asked Mphahlele for a meeting that day to find a way to

resolve the issues, but Mphahlele was non-committal and merely said that

he was involved in a church function, that it would be difficult to meet with

him, but he would revert to him on a possible meeting. Mphahlele could

not recall if he was at church that morning, but if he had called him on a

Sunday he would have been at church. He did not recall the particular

conversation referred to by Jacobs. After failing to get hold of Mphahlele

during the course of the morning, Jacobs sent Mphahlele the following

SMS at 10h55:

“Hi Jeff, our earlier telcon. I will still want to meet with you

today/this morning and was stated in Jhb until you available. The

situation now need urgent intervention by you and the AMCU

national leadership. As indicated to you earlier one employee was

hacked by AMCU members (investigations continuing), and

AMCU members in our hospitals/residences of drumming up

support to block roads and bridge s, and threatening that

employees at shafts will be dealt with today. This situation has the

potential to lead to widespread violence and unprotected strike

action at mines in the Vaalriver, which in the current economic

conditions threatens the viability of our mines.

Regards Ian K Jacobs.”

[103] An hour later, Mphahlele got back to Jacobs and told him he was available

for a meeting, but no arrangement was made and the matter was left on

the basis that Jacobs would revert to him. However, it was decided that

since the shift had been lost already, Mphahlele’s involvement would not

resolve anything. It was at that stage Jacobs was then instructed to

contact AGA’s attorneys and consider legal avenues going forward. From

Mphahlele’s own evidence, there is no suggestion that he took any other

steps to intervene in the situation but his understanding was that the

meeting held at the country club was the result of the exchange he had

with Mphahlele. The original pleadings, it was common cause that AGA

Page 39

made no contact with any AMCU trade union official to discuss the course

of action that it intended adopting in relation to the individual applicant’s

conduct. During the course of Mphahlele’s initial examination in chief, the

respondent alerted the court to its intention to plead a different version in

an application to amend its response to withdraw its original admission

that “…the company made no contact with any AMCU trade union official

to discuss the course of action that it intended adopting in relation to the

individual applicant’s conduct.” However, when Jacobs was re-examined it

was suggested that the original admission, which the amendment sought

to withdraw, had been confined to an admission that there were only no

communications during 18 and 19 April and did not imply that there had

been no communication prior to those dates.

[104] Pule said that when he arrived for his shift at 14H30 on Saturday that

people were still singing like they had on the previous day and no buses

transported anyone by the time he knocked-off at 20h30.

21 April

[105] On 21 April 2013, a so-called “Green Note” was issued by Madondo to the

effect that the section 54 notice had been uplifted. This was a result of

further representations made by the mine and unions to the Principal

Inspector of Mines. The company also finalised its plans for the

forthcoming disciplinary enquiries in an HR meeting which started the

previous morning and continued throughout Sunday. Van Heerden said

that the violence which ensued following the dismissal of the top seven

had no effect on the planning of the enquiries.

23 April 2013

[106] On Tuesday 23 April 2013, it was claimed that AGA sent a letter to

Mphahlele advising him of the company’s intention to take disciplinary

steps against AMCU interim leaders at Moab Khotsong relating to alleged

participation in an unprotected strike on 20 April, incitement of workers not

to attend work on that day and, incitement to violence. The letter invited

Mphahlele to discuss the planned action with Jacobs. It made no mention

Page 40

of disciplinary action against ordinary members arising from the events of

20 April. Mphahlele said that at the time the union was in the process of

occupying new national offices and it might have been received but he had

no recollection of seeing it then. Van Heerden claimed he had given it to

Madondo’s secretary to fax to AMCU and had seen it being faxed.

[107] Madondo issued a general brief to all employees about the events on

Saturday in which, amongst other things, he mentioned that:

107.1 employees had embarked on an unprotected strike, which was

in violation of established working arrangements at the mine and a

breach of the conditions of employment;

107.2 there had been incidents of intimidation;

107.3 the company did not condone the violence and was

investigating the matter with the authorities;

107.4 thanking those employees who continue to report for work, and

107.5 cautioning employees that “final warnings issued following the

previous unprotected strike in 2012 are still in force.”

[108] The same day a letter was also sent by AMCU to Jacobs complaining of

the dismissal of members, presumably a reference to the top seven, and

apart from urging management to reinstate the members, called for an

urgent meeting between the parties ‘to deal with all matters of concern’.

The response from AGA’s attorneys sent on 24 April did not respond to

the proposal for a meeting. Jacobs said he found it strange that the union

was asking for a meeting at that stage and made reference to a passage

in the letter which referred to the union acting in breach of the court order

granted on 15 April in that members had embarked on unprotected strike

action as threatened on Saturday 20 April.

[109] The mine proceeded to dismiss the top seven on the same day and Rohr

confirmed the contents of certain video footage apparently showing the

departure of the leadership from the logistics area of the Moab Khotsong

shaft, which they had previously refused to leave until the mine sought the

assistance of the SAPS. Later the same afternoon, footage was shown of

Page 41

confrontation between people gathered at the loading platform and the

SAPS, which included the firing of a stun grenade and stone throwing.

[110] On Tuesday 23 April 2013, AGA also brought an application for interim

relief under case number J 821/2013, seeking amongst other things the

following relief against AMCU members at Moab Khotsong mine:

“That the withholding of labour on Saturday, 20 April 2013 at the

applicant’s Mponeng and Moab Khotsong Mines by the further

respondents, be declared to be an unprotected strike.

That the first to further respondents are interdicted from withholding

labour or embarking upon an unprotected strike”

[111] A rule nisi in these terms was issued and on 7 June 2013, the rule was

confirmed by consent. A legal controversy exists around the status of

the order. AGA contends that the applicants cannot dispute the finality

of the order as a declaration of the unprotected nature or, alternatively,

are estopped from disputing the existence of an unprotected strike on

20 April.

[112] On the return day of the interdict on 7 June 2013, AMCU only opposed

an adverse order of costs and did not take issue with the substance of

the order. According to Mphahlele the union’s main concern was

avoiding a waste of money and there was no time to take advice on the

issue, though he conceded under cross-examination that the person

who had been dealing with members at Moab Khotsong was

Nkalitshana. Moreover, it was only in December 2014 that the union

consulted with members and, by implication, obtained a fuller picture of

events. In retrospect, in the light of the fact that operations at Moab

Khotsong had ceased owing to the section 54 notice, he took issue with

the allegations in the founding affidavit in support of a claim of

irreparable harm that the two mines would have each lost 25 kg of gold

production for each shift lost.

Page 42

24 and 25 April 2013

[113] On Monday and Tuesday, following the operational shut down while the

red notice was in force, workers reported for work and were allowed

access to the mine as normal.

[114] Having dismissed the top seven on 23 April, the company obtained an

interim interdict the following day prohibiting them from entering the mine

premises except to remove their belongings and from continuing with acts

of intimidation or inciting workers to strike.

[115] On Wednesday 24 April 2013, after obtaining the interim declarator the

day before, that AGA proceeded to convene disciplinary enquiries, without

prior notice to AMCU. AGA maintained it was under no obligation to do so

because clause 4(2) of AGA’s disciplinary code only provides that it is

necessary to advise the union of growth disciplinary action when that

action involves union representatives, office bearers and officials.

Mphahlele testified that the union never had time to represent the

members and played no role at all in the enquiries. Despite defending the

policy of not advising the union of its intention to hold disciplinary enquiries

involving the rest of the membership, Mphahlele was challenged on why

AMCU national structures did not send anyone to represent them. His

response was that the national organiser was barred from doing so.

[116] It only emerged late in the proceedings that workers who had reported for

work on the night shift of 23 April were also blocked from working and

were told that they should report to the mine the next morning. Neither van

Heerden nor Madondo could say that they would have known that the

purpose of reporting would have been to attend disciplinary enquiries,

though van Heerden believed they would have learnt that when they

reported at the mine the next day.

[117] The decision to proceed with the mass disciplinary process was taken

at the so-called control room of AGA in Potchefstroom with the input of

all the senior HR management. The expedited process adopted was

influenced by concerns that if workers were initially suspended and then

summonsed to disciplinary enquiries a day or two later, it might have

provoked a recurrence of the underground sit-ins that had taken place

Page 43

at other mines. There had also been incidents requiring the intervention

of the SAPS and threats had been made, amongst others, against van

Heerden when he had summonsed the top seven to their disciplinary

enquiries. The situation was viewed as a crisis situation. Jacobs

conceded that as a result of the way the proceedings were conducted

workers had no opportunity of obtaining advice from, or representation

by, AMCU. Van Heerden testified that given events on 19 April, stone

throwing which took place after the dismissal of the top seven and the

threats made to him, AGA felt the hearings should be held sooner

rather than later, before it spilled over into other business units. For the

same reason the right to representation at the hearings was denied to

prevent the process being prolonged. However, if there had been a

request by any member for representation by a friend or representative

they would have made provision for that.

[118] The enquiries were held at a recreation venue on the mine property known

as Eagle’s Roost, situated on the river running through the property and a

distance of a few kilometres from the hostel. Employees were bussed to

the venue when they reported for duty on that Wednesday.

[119] Although AGA had evidently made extensive arrangements for the

conduct of the enquiries, which can be gathered from the organisation of

the enquiry venue at Eagle’s roost, employees only learnt of the enquiries

on their arrival at work that morning. Those who were scheduled to appear

before an enquiry could not gain access to the mine when they attempted

to clock in and the word ’transfer’ appeared on the monitor when they did

so. The blocked individuals were told by the DJ, who addressed them

through a megaphone, that all workers who received the ‘transfer’ or

‘blocking’ code should board the buses parked at the shaft bus rank.

Jacobs testified that employees were blocked on the basis that they were

AMCU members who were rostered to work a particular shift but did not

attend. Those individuals with valid explanations for not being at work and

would have an opportunity to deal with that at the disciplinary hearing. He

conceded that in retrospect it would have been more convenient to go

through the records to identify those on authorised leave of one kind or

another or on training, but they were trying to bring a situation under

Page 44

control and get those who should have been at work back to work. Van

Heerden said that it would have been a mammoth and time consuming

task to audit all the different systems to acquire records of an individual’s

clocking history before the enquiries took place. He accepted that errors

would result from such a process.

[120] Van Heerden testified that he believed the original list that was used as a

basis for identifying persons absent from work was drawn up on Saturday

20 April and it was this list that was used to identify those workers who

should be blocked from entering the mine on Wednesday 24 April. The list

only became available around 10 February 2015 for the purposes of trial.

The record of some of the persons who had presented medical

certificates, sick notes or other documents explaining their absence on

Monday or Tuesday might not have been captured on the system so they

still would have been recorded on the list as absent without leave. The

chairpersons of the enquiries did not have copies of the list and would not

have realised that certain individuals would already be recorded as having

been off work on account of illness on the final list that was used as the

attendance register. Hence, they would have been through the disciplinary

process on the basis that the company record simply showed they were

absent from work, even though the reason for their absence would have

been apparent from the final list. Van Heerden admitted there had been

mistakes, but where management became aware of the mistakes, they

were rectified.

[121] Ndlovu claimed that he asked the DJ why they had to get on the busses,

but he only knew he had to tell them to do so. According to Ndlovu, the DJ

did not read the script which he had been given to use for his

announcement, in which a brief explanation was given that the buses were

there to transport workers who allegedly participated in a strike on

Saturday to explain why they did not come to work. Mokokhe said that he

was asked to make the announcement about the disciplinary enquiries

and did so every ten minutes at 07H00 the morning. Although he corrected

himself and said that he would have made the announcement more often

than every ten minutes if a large number of people arriving, he could not

say if it was possible that someone would still have heard the

Page 45

announcement if they had been ushered to the bus by security officers

during the interval between announcements.

[122] Ndlovu said he waited with other workers who had also been bussed to

the venue from about 04h00 to 05h00, which is when the enquiry process

commenced. Both Ms M Gwadiso (‘Gwadiso’), and Makwekwe’s evidence

in this respect was similar. Tiyo claimed to have caught a bus at around

09h00. According to Ndlovu prior to arriving at Eagle’s Roost nobody knew

why they were there. Makwekwe’s evidence of the process by which he

found himself transported to the hearing venue on arriving at work was

essentially similar, except that he claimed he was ushered onto the bus by

a security officer and had no recollection whatsoever of the DJ making any

announcement. Gwadiso, who was on slick sick leave, also testified that

she was escorted by security officials to the bus.

[123] The company’s original version was that buses only arrived at Eagle’s

roost at 10H00 because people had refused to get on the buses. However,

video footage introduced during Rohr’s evidence showed enquiries in

progress by 08H30 that morning. Photographs of the exterior of the venue

also appear to have been taken in early morning light. When van Heerden

testified he was puzzled where the company version originated and his

recollection was that the busses must have left for Eagle’s Roost early at

around 05H00. If he had told AGA’s lawyers that the enquires started at

10h00 whereas it was about two hours earlier, that was an error. Workers

entered a hall at the venue in batches. The hall had been partitioned by

curtains with a number of tables at each of which three persons were

seated. Joint enquiries of three or four employees at a time were

conducted by these panels. According to the company there were

approximately 15 persons chairing the hearings.

[124] Essentially, workers were asked to explain where they were on the

previous Saturday. If they were unable to explain why there had not

reported for duty they were advised that they were dismissed but that they

could appeal. It seems that in cases such as that of Ndlovu, who did not

give an explanation but who had no means of proving why he did not

report for duty, they were advised to bring proof of the legitimate reason

Page 46

for being absent and presented the following day at an appeal hearing. In

his case it seemed that there was a superficial anomaly in his clocking

record on the Saturday because he had clocked in at the gateway centre

but appears to have clocked out at the Moab Khotsong mine sometime

later than he said he had left the training centre. This was somehow

misinterpreted resulting in him being singled out as being absent from

work. Makwekwe claimed that he was accused of not being at work and

when he said he had been, he was accused of lying. It was contended by

the company it was improbable that if Ndlovu and Makwekwe had

attended the hearing their defences would not have been verified because

a computer link had been established between Eagle’s roost and the

company to verify claims like that of Ndlovu. It further claimed that

chairpersons of the enquiry were specifically instructed to make use of that

facility by approaching van Heerden, who was in charge of the process or

a certain Mr Carrigan. Van Heerden said that another HR manager, Mr N

Deetlefs, was also present to deal with time and attendance queries. Rohr

conceded that it was not necessary for an employee to produce proof of

his attendance at work if these records were available.

[125] All those witnesses who were summonsed to enquiries said the enquiries

were very brief and over in a matter of a few minutes. Steyn said enquiries

involving five or six people would last about 20 minutes. They were

advised that they were dismissed. In every case, even those who claimed

that they were told they were dismissed on account of their AMCU

membership, were asked why they were absent on their Saturday shift. As

van Heerden characterised it, it was not necessary for the company to

prove that the worker was on strike, it was on the basis of the employee’s

version that a decision was supposed to be made. Some, like Ndlovu,

claimed that they had complained about the lack of opportunity to prepare

or to be represented. Some like Makwekwe, Gwadiso, Tiyo alleged they

were told expressly that they were being dismissed because of their

AMCU membership. Others, like Ndlovu supposed that was the reason

because they could not see any other. In Lebodi’s case he believed that

was the reason because NUM members who were not at work were not

dismissed. Ndlovu was advised to bring proof of attending the training, as

Page 47

was Tiyo. Tiyo claimed that he obtained confirmation that he tried to attend

the training on 20 April (he claimed the venue was closed when he got

there and later said he was not due to attend training on that day anyway),

but it was torn up by a Mr M Steyn (‘Steyn’) when he presented it to him

even before he was admitted to attend an enquiry, where the same

questions about his whereabouts were asked. Steyn was a human

resources manager from Great Noligwa, who denied that he would have

had such a conversation with Tiyo in the course of his duties that day,

which were to ensure the orderly movement of people at the venue, and

that it was ridiculous to suggest he would have dealt with one individual in

this way. Inexplicably, the reason recorded on the pro forma enquiry form

for his non-attendance was that he was on night shift and wanted to go to

work but there was no transport.

[126] Ndlovu, Makwekwe and Gwadiso were challenged as to whether they had

attended the enquiry at all, amongst other reasons because their names

had appeared on a list of 217 members whom AMCU originally claimed

had not attended disciplinary enquiries, but were later taken off when a

revised list was submitted. Ndlovu’s details also did not appear on a

register kept by the company of those who had reported at Eagle’s roost,

nor did the company have the pro forma record of the hearing which he

claimed he had attended. Makwekwe and Gwadiso were also challenged

about whether they had attended a disciplinary enquiry on that day. In

their cases too, the company had no record of their names appearing on

the register or any record of their hearings.

[127] According to the pro forma disciplinary enquiry document1 it advised

dismissed workers that:

“You have a right to appeal the decision of dismissal and are

advised that you need to report to this venue tomorrow at 07:00

(transport will leave at 06:00 from the Itterileng residence)

should you wish to appeal.”

1 263A

Page 48

Workers who wished to appeal were expected to indicate this in a tick box

provided for this purpose on the form. At some stage on the 25 April a

brief was issued by Madondo advising that the workers who did not attend

a hearing on 23 April or who were dismissed on 24 April had an

opportunity until 12h00 on Friday, 26 April to lodge an appeal or attend a

hearing. This brief was followed by another one the following day

reminding workers of the cut-off, failing which they would be dismissed

effective from 12h00 that day. How these briefs were conveyed to

dismissed employees was not an issue canvassed with the applicant’s

witnesses.

26 April 2013

[128] Ndlovu claims that the following day he reported at the hostel bus rank

with his clocking history and was about to board the second bus heading

for the venue where the appeals were apparently going to be conducted

but before the second bus could leave the driver of the first bus had

communicated with the driver to say that he should not come to the venue.

As a result, he did not have an opportunity to appeal on 25 April.

Makwekwe also claimed that he was told that the appeals venue was

closed after he had boarded a bus to attend an appeal hearing. Gwadiso

claimed that she also queued for a bus to attend the appeal hearing but

the bus did not arrive and eventually they were advised to go to the

security office where they were given R 400 and told they should leave

and go back to the Eastern Cape. Tiyo also mentioned this in his

evidence. In Gwadiso’s case, she went home. Under cross examination,

Gwadiso modified her explanation of why she did not attend the appeal

hearing by saying that there was a very long queue and only one bus was

transporting people. She also gave a somewhat confused explanation that

the appeals did not proceed because the national organiser, Nkalatshana

was present. Bezuidenhout also verified that 474 dismissed workers

who reported to the security complex with letters of dismissal were

given R 400-00 to travel home, even if they did not wish to sign for

receipt of the cash.

Page 49

[129] Subsequently, on advice of an Assistant HR officer, Ms L Mole (‘Mole’),

Ndlovu also went to the HR office, where he was berated for coming late

to lodge his appeal. However nothing materialised and he was never

called for an appeal hearing. He could not recall the date when this

happened, but it would seem even on his own version that it probably took

place after the expiry of the final cut-off for lodging appeals. This is even

more likely given the version of Mole. She confirmed that Ndlovu had

sought her assistance in April or May and he had complained that there

were no busses to take people to the appeal hearing, but said he had

come too late with problem and he was told he could not be helped. She

denied he had been shouted or sworn at by various other HR personnel

who became involved in the issue. She did concede that he had been

wrongly dismissed, but she was not in a position to reverse the decision as

it was not in her hands.

1.

[130] One of the allegations made by Ndlovu was that one of the more senior

HR officers said that if they took him back they would have to take

everybody back but Mole denied this was said.

The extended appeal process after 26 April

[131] On AMCU’s request, a further opportunity was provided for dismissed

employees to appeal commencing on 30 April 2013. This was arranged by

agreement between AGA and AMCU at a meeting on 29 April 2013 at the

Johannesburg Country Club. AMCU, through its attorneys, had requested

a collective appeal on behalf of the dismissed members, but AGA would

not accede to that. Jacobs claimed that it was decided not to agree to this

because it was felt that there might be great injustices done to some

individuals in a collective appeal, because individuals would not be able to

offer explanations relating to them personally, a view also expressed by

van Heerden. According to the letter from AGA to AMCU recording the

understanding:

“It was agreed to provide all employees with another opportunity

to appeal. In this regard you are to impress on your members to

avail themselves in order to appeal. As agreed, your members

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will be able to lodge and present themselves for such appeal as

from 07:30 on Tuesday, 30 April, up to 17:30. And depending the

remaining people we will deal with such appeals until 14:00 on

Tuesday, 2 May 2013.”

The letter also reaffirmed the status quo as far as Saturday work was

concerned but AGA committed itself to revive discussions about it at a

meeting on 6 May 2013. The applicants also agreed that on 30 April Mr J

Mathunjwa, the AMCU President (‘Mathunjwa’), had advised his members

and officials to make use of the appeal process. The cut-off at 14H00 was

subsequently extended to 17H00. Another part of the agreement was two

AMCU officials could attend as observers. Jacobs was reluctant to agree

that it was management’s decision that workers could not be represented

by AMCU officials, but this would seem consistent with their approach to

the issue of representation in the disciplinary enquiries.

[132] On the morning of 29 April, the applicant’s attorneys advised the

respondent’s attorney that AMCU officials would be assisting members

lodging appeals of the following day. It appears that Nkalitshana did arrive

at the appeal venue on 30 April, and was eventually allowed access to the

venue but did not appear in any of the individual hearings being

conducted. Van Heerden testified that Nkalitshana and Mthunjwa had

been at the venue from around 09h30 to 13h30, and that they had some

deliberations with management personnel there, but nothing arising from

this was brought to his attention.

[133] Ndlovu, who did not live in mine accommodation but lived in Klerksdorp,

denied ever being made aware of this opportunity by AMCU or anyone

else. According to the company, of the 500 odd workers dismissed 330

AMCU members attended an appeal enquiry. Makwekwe, who also did

not live at the mine but caught a taxi to work from his home near Orkney,

claimed not to have heard of the extended appeal arrangement. Similarly,

Gwadiso also claimed not to have heard about the extended appeal

process. Mphahlele in his cross-examination explained that the dismissals

created a significant degree of dislocation because some members would

have gone home after being dismissed and might not have been aware of

Page 51

the opportunity to appeal. Others did not live on the mine premises. At the

time the union was not necessarily aware of the extent to which there was

non-attendance at the appeal hearings.

[134] While the appeal process was in progress, the mine obtained a search

warrant on 30 April 2013 and on 2 May a search was conducted at the

hostel by the SAPS supported by mine security personnel in which a

sizeable quantity of iron bars, knives, sharpened metal spikes,

knobkerries’ and other potentially dangerous objects were seized. It was

common cause that the items could have belonged to either NUM or

AMCU residents of the hostel, though it was in fact NUM that had asked

management to conduct such a search.

Subsequent developments

[135] It is apparent from correspondence media briefings issued by AMCU from

AMCU to the chamber of mines and to the Minister that the union initially

adopted the stance that workers were not scheduled to work on Saturday

20 April because it was an off Saturday. It was only in a media briefing

issued on 9 May that the union demonstrated that it was aware that the

mine was “non-operational” on account of the section 54 notice and the

“alleged unprotected industrial action could have been averted” if the mine

had notified workers that there would be no work on that Saturday

because of the notice.

Duties of workers during the application of the section 54 notice

[136] The versions given by the applicant’s witnesses about the very limited, or

non-existent, work performed at the shaft during the operation of the

section 54 notice was not essentially challenged during their testimony,

except to the extent that a concession was sought that they were required

to go to their places of safety and await instructions. However, the later

company witnesses were led at great length on the extent and importance

of the work that should have been and was performed by underground

team members whilst the notice was effective. Initially, Jacobs simply

confirmed that even though operations were suspended, it remained a

Page 52

normal working day and workers were still obliged to attend work “to do a

number of activities, their cleaning activities”. He elaborated:

“There is refresher training, there is training and workers must be

available in the unlikely event that the section 54 is lifted, so that

production can… resume immediately.”

[137] Jacobs expanded on the waiting places, and which workers were

supposed to report in terms of the red notice. Essentially he described it

as a place where workers could sit and training could be given and issues

giving rise to the section 54 notice could be reviewed. A photograph of

such an area showed a rudimentary underground area with seating and a

flipchart. Madondo described waiting places in the following terms:

“ A waiting place is a place that is required in terms of our

standards and our procedures, that is the last place that any

worker can get to that is safe before they can enter a working

place. Now, a working place in this case, it refers to stoping

areas where drilling operations and blasting operations occur, as

well as development ends, which is at the extremities of the Mine.

So somewhere in the crosscut, 50 metres to 100 metres, you will

get a waiting place, and a waiting place is a place that is set up so

that it is safe, it is not affected by the blasting operations and the

such, and so any worker proceeding to his working place will then

be required to get to the waiting place and wait there for further

instructions.”

On each of the six levels of the mine there could be 10 to 20 waiting

places accommodating crews comprising 18 employees. Under cross-

examination, he sought to explain that the waiting area was simply the last

part of a much larger safe area which extended all the way back to the

station. It was only after employees ventured beyond the waiting area

towards the mining operations that they entered a working area. It was the

tracks from the station to the waiting place that workers were expected to

clean and his interpretation of the s 54 notice was that even though he

would describe the area from the station to the waiting area as a work

Page 53

place, it was not a ‘working place’ contemplated in the notice which only

referred to working areas beyond the waiting area.

[138] Madondo denied that the Red notice could not be interpreted to permit

such work, because employees were required to await further instructions

which supervisors would have issued and those partly related to the

remedial actions in the s 54 notice concerning track works. The fact that

such remedial actions were not risk free did not mean it was not safe for

the purposes of the s 54 notice. He agreed that the night shift commencing

on 18 April just after the Red Note was issued could have started the

cleaning work but could not confirm they could have completed it by the

time they knocked off the next morning, nor could he say if it could have

been completed in two shifts even if it was the only work done for the

following morning and afternoon shifts on 19 April too. When pressed,

Madondo could not confirm if any instructions of this nature were issued.

[139] To bolster Madondo’s evidence a production shift boss, Mr D Machonga

(‘Machonga’) was called. He claims his supervisor told him to go

underground and talk to his team about the s 54 notice at the waiting

place, then clean the crosscut, load the mud and remove rubbish from that

area.

[140] Jacobs also elaborated further that during the shutdown employees could

still be engaged in functions making the workplace safe, which were not

prohibited by the section 54 notice. In this instance, they were instructed to

clean railway tracks leading to the stopes, but not at the stopes as such. In

the light of this, he believed that despite the section 54 notice, 19 and 20

April were still normal working days and accordingly the company had not

misled the judge hearing the interim application to interdict strike action by

not mentioning the existence of the notice.

[141] Jacobs conceded that he could not dispute the evidence of WA1 that

nothing was happening at the mine when they reported for work on 20

April.

[142] Under cross-examination he did concede that no production losses, as

such, took place but might have occurred if the notice had been lifted

during 20 April and workers were absent. Similarly, Jacobs denied that

Page 54

there had been any deliberate attempt to mislead the court hearing the

interim application on 23 April that Mponeng and Moab Khotsong mines

had suffered production losses the previous Saturday of R11.6 million per

shift, when the founding affidavit had been signed on 22 April. In re-

examination, the court was alerted to the fact that the founding affidavit

referred to losses AGA would face as a result of the “intended action”, and

not to actual losses suffered on 20 April.

[143] During his second day of evidence, at the first opportunity, Jacobs sought

to rectify his unqualified concession that there were no production losses

by explaining that according to his understanding when the gullies were

cleaned, even if no blasting was done, gold would be extracted from the

debris that was cleaned out. After mentioning this very specific new

evidence he said “I just thought I just informed the Court of that…” What

prompted him to suddenly recall this particular detail the following day is

not clear.

[144] Van Heerden agreed that under the s 54 notice there could not have been

normal production but that other instructions were given and in cleaning

the rail haulages ‘a lot of mud’ containing gold bearing material could

have been loaded into hoppers and transported to the plant. Later another

witness, Madondo testified extensively on this alleged productive activity

being performed while the mine was non-operational. On the basis of this

he claimed the mine had suffered losses from non-recovered gold in the

cleared material and in not making the mine safe while the Red Note was

effective. Machonga claimed that on both his Friday and Saturday shifts,

the whole shift was spent on cleaning work of this kind in a 300 metre

crosscut. None of this type of activity nor its extent was even hinted at

when the applicants’ witnesses were canvassed on their obligation to

report to places of safety as set out in the Red notice. Van Heerden also

pointed out that if the safety work set out in the s 54 notice was carried out

the start-up process when operations commenced would be quicker.

[145] The motivation submitted to the Principal Inspector or Mines, which led to

the lifting of the s 54 notice, was that:

Page 55

• The following actions and control mechanisms will

continue to take place until the instruction is

complied with. Supervisors, including the mine

overseers, the shift bosses will conduct entry

examinations with the crews to do coaching over

inspection, quality of the entry examinations until the

competent A training has been completed.

Particular focus will be placed in the areas identified

to be non-compliant in the order.

• The training officers will check the quality of the

entry examination until training for supervisors is

completed.

All the deviations found during the auditing of the

rail conditions must be fixed before allowing any

tramming activities to proceed.

Disciplinary action or non-compliance will be dealt

with according to our procedures.”

[146] It was put to Jacobs that in terms of the instruction issued by the Inspector

of mines in the section 24 notice that there would be no cleaning of tracks

until the investigation was completed and that it was only after the Green

Note was issued on 21 April 2013 that the instruction was issued to fix the

deviations found during the auditing of rail conditions before any tramming

activities could proceed. Jacobs maintained that this did not mean that

cleaning activities would not take place while the red notice was in

operation.

[147] Under re-examination, Madondo went so far as to claim that between 10

and 30 % of normal ore production in a shift could be recovered simply

Page 56

from the cleaning operations done in a crosscut, while mining operations

were not in progress.

Overt statements of bias against AMCU

[148] Lebodi claimed that he was told by the appeal chairperson. He also

claimed that he was told by one Jabulane Tshabalala, who had previously

been an AMCU member, that if he went and apologised to management

and signed a ten year membership agreement with NUM he could go back

to work. However when he was shown the photograph of the person with

the corresponding name and the same company number which Lebodi

had provided, he denied that it was the same person he had spoken to.

According to the company records of the individual in question had no

union affiliation Lebodi also claimed that at the appeal hearing when he

was asked why he should not be dismissed and gave the explanation that

there was no transport available he was told that he must go away “with

his AMCU” by the chairperson of the hearing. Jacobs disputed that AGA

would ever have entertained the alleged tied membership agreement

mentioned and pointed out that AGA was the first to really embrace AMCU

as a union when it emerged compared to other mining houses.

Evaluation

[149] In its response to the applicant’s statement of case, AGA contended that

because the alleged unprotected strike was only for a day, no ultimatum

was given to workers to return to work nor was this practical given the

circumstances of the strike, but they had been cautioned against

unprotected strike action on numerous occasions. Mphahlele disputed that

it would have been impractical to issue ultimatums because the company

could have used loudhailers, notice boards and meetings to do so.

Discrimination

The sixty-four stop orders

[150] On 24 April, when the disciplinary enquiries were underway, NUM

provided AGA with membership forms of sixty-four employees, claiming

that since they were NUM members no action should have been taken

Page 57

against them. AGA refused to process the forms and recognise the

individuals as NUM members because it claimed that it could not be

certain forms had been completed prior to the strike. In other words it was

concerned that certain AMCU members were trying to change their union

affiliation to avoid association with the strike. It was not disputed that 22 of

the NUM forms submitted were apparently completed by applicants in this

matter. According to van Heerden’s testimony, 18 of those on the list had

no previous union affiliation and 42 were recorded as AMCU members.

The forms were not accepted because the last one to be completed had a

date of 19 April and earliest dated back to February so they should have

been submitted earlier.

[151] Mphahlele was clearly reluctant to accept that the company’s refusal to

accept these forms was indicative of an even-handed approach to the two

unions, but he clearly saw it as an expression of its determination to

ensure that AMCU members could not avoid disciplinary action by the

stratagem of changing their union affiliation. However, it was AGA’s case

that it only came to learn of the twenty-two applicants’ membership of

AMCU when they were identified as such in the case. AMCU’s main

concern, as expressed by Mphahlele, was that the company was only too

willing to accept that if NUM members said they could not get transport to

the mine, their excuse was accepted but when the same justification was

offered by the applicants they were dismissed. He attributed this to

hostility by AGA towards AMCU. Moreover, although the company refused

to accept the stop orders from NUM it was only the AMCU members

amongst the sixty-four who were dismissed, which suggested that the

company was specifically targeting them. Van Heerden who had also

suggested that workers who wanted to get to work could have done so by

other means. He also said that the only reason NUM members were not

charged with striking was because they said they wanted to go to work but

were being prevented from doing so by AMCU members’ intimidatory

actions. He claimed that even a small group of workers could stop a whole

shift from working if they intimidated them. On the other hand, he felt that if

the AMCU members wanted to work they would have made the means to

Page 58

get there, like others who did report for work or who reported at the

helipad.

[152] Jacobs agreed that some of the 64 stop order forms submitted were

signed on 15 March 2013 and, on the face of it, this suggested that the

relevant AMCU member had not sought to join NUM for opportunistic

reasons. However, membership forms were usually received soon after

they were signed and the timing of the submission of the forms lead AGA

to believe that the change of affiliation was an opportunistic move related

to the strike. Van Heerden was tested under cross-examination that only

27 rejected stop-orders were returned to NUM by AGA and all of the

rejected forms were of persons who were dismissed, whereas the

remainder were not. He strongly denied that the company had retained the

other forms and had not rejected all the stop orders.

[153] It was put to Mphahlele that the company’s willingness to reconsider the

cases of AMCU members who had a valid justification for not being at

work on 20 April and the fact that at the time 46 AMCU members were not

dismissed showed that the company was not unsympathetic where there

was a genuine reason for an employee’s absence. Mphahlele accepted

that the company was remedying some individual cases, but felt that this

paled into insignificance in the light of the number of employees who were

dismissed. As with the example of the sixty-four stop orders, these were

relatively trivial gestures by the company when compared with the vast

number of non-AMCU members who were allowed to return to work

despite having been absent on 20 April.

The Disciplinary Process

[154] In an internal briefing document of AGA, drawn up in preparation for the

enquiries, the disciplinary process including potential risks and an

alternative plan was set out. Under the list of alternatives if employees

refused to attend the scheduled disciplinary hearings, it was stated,

amongst other things:

“Hear the cases as per the above plan or mass dismiss AMCU

members who participated in the stayaway on Thursday”

Page 59

Mphahlele interpreted this to mean that there was already a plan to

dismiss AMCU members.

[155] AMCU also argued that based on the attendance records readily available

to the company, it ought to have been obvious that some persons did not

report for work for reasons the company should have accepted as

legitimate.

[156] Jacobs denied that the company had targeted AMCU members, but was

of the view that it was clearly AMCU that had consistently driven the

Saturday work demand and NUM was the first to make contact with the

company to advise that their members would not support it with the strike

and were being threatened and intimidated. Madondo testified that during

the morning of 20 April while he was at the shaft working, he was

approached by local NUM leaders. In relation to the contention that NUM

members were excused from attending work on the basis that no transport

was available, whereas this excuse was not accepted from AMCU

members, Jacobs explained that it was obvious that NUM members could

not have boarded buses, whereas it was part of the stated plan of AMCU

leadership to disrupt the bus transport. This was part of an orchestrated

action and even if buses had been available AMCU would have made sure

that people did not make use of them. He believed that the intimidation

taking place at the bus terminal was aimed at non-members of AMCU. He

accepted that some AMCU members might not have supported the strike,

which was why the mine provided the alternative of reporting at the

helipad, even though none of the 200 odd persons who reported there

were transported to the shaft. He agreed the mine could not prove who did

not go to work because no busses were provided, but expressed the view

that it was the responsibility of individuals to disassociate themselves from

what was happening.

[157] Jacobs also disputed that the company’s actions were aimed at

maintaining NUM’s majority status at Moab Khotsong, because union

membership strength was only relevant at company level, and it did not

matter which union was stronger at a particular business unit.

Page 60

[158] During the course of Jacobs’s cross-examination he was questioned about

a list of persons rostered to work on 19 or 20 April, that was only

discovered while the trial was under way. What that list showed is that

approximately 38 persons who were dismissed on the company’s own

records had a legitimate reason for their absence. Jacobs denied that the

failure to exclude these persons from disciplinary hearings or to exonerate

them on the basis of what period on the list was indicative that the

company was intent on getting rid of AMCU members irrespective of the

merits of their individual cases. It was inevitable in dealing with the 585

employees who were subjected to disciplinary enquiries that errors would

have crept in. These were clarified when van Heerden testified. In all, 26

of those dismissed were either on sick leave (like Gwadiso), clocked in at

the shaft (such as Makwekwe and Mzileni), not scheduled to work, on

family responsibility leave, attending training (such as Ndlovu). A further

10 employees who were found not guilty at the disciplinary or appeal

hearing but never returned to work.

[159] During the course of the trial, a review was conducted on the cases of 36

individuals whose circumstances suggested they ought not to have been

amongst those dismissed. Of those, the company made offers of

reinstatement with backpay to 20 individuals. Two others were recorded

as being re-employed and were withdrawn as applicants. These offer were

formalised during van Heerden’s testimony on18 February 2015. Prior to

that date only two offers of reinstatement had been made.

Were the applicants on strike on 19/20 April 2013?

[160] It is clear that the conditions of Saturday work had been identified as a

source of grievance not only at Moab Khotsong mine but across the

company. Motloi’s evidence supports this. Communications between AGA

and AMCU preceding, and during, 19 and 20 April 2013. The

preponderance of the evidence also points to the conclusion that AMCU

local leadership was galvanising for a strike on the Saturday shifts of

19/20 April 2013. Mphahlele agreed that from what he had heard and read

that members had claimed not to work on Saturday, but the advent of the

Page 61

section 54 notice automatically disposed of the notion that they were on

strike.

[161] When Jacobs communicated with Mphahlele on 19 and 20 April 2013, it is

common cause that he did not convey the course of action which AGA

intended to take in relation to the individual applicants. It is also apparent

that Jacobs did communicate with Mphahlele, but Mphahlele was initially

noncommittal and it was only after receiving the request for urgent

intervention in the form of the SMS at around 11H00, that Mphahlele was

prompted to agree to meet with Jacobs. Once the belated commitment

was made, Jacobs did not take up the offer by firming up a meeting.

Fairness of dismissal as a sanction

[162] Jacobs had defended the imposition of dismissal on the basis that they are

workers at Moab Khotsong on final warnings and were aware of them, the

company had taken “quite lengthy steps” to try and approach the action

and that brought the potential consequences of embarking on it to the

attention of national and local leadership. Moreover, there was no remorse

shown by the leadership or the dismissed employees. Given that the

workers had followed the leadership of the top seven which were “almost a

law unto themselves at the time” they did not believe the relationship with

those employees could be salvaged. The company was clearly of the

impression that the local leadership was at odds with national leadership

on the Saturday work issue, but the union had failed to take a lead in this

instance as it had done at Mponeng to unlock the situation. He also

dismissed the possibility of re-establishing an employment relationship

with the dismissed workers given that the company was currently in a

restructuring mode and had shed 2000 jobs since 2012 in the low gold

price environment.

[163] Under cross-examination, Jacobs agreed that some 39 individual

applicants did not have a final written warnings but were still dismissed.

However, he was reluctant to agree that these workers should be treated

like those at the Mponeng and Tautona mines on the basis that they had

issued a pre-emptive ultimatum which was consistently communicated

Page 62

through the DJ and the violence which accompanied the action meant that

their dismissal was still justified. Even if they had not been personally

responsible for any of the violence, they had identified themselves with the

action by AMCU. It was only when van Heerden testified that some

explanation was provided for this apparent anomaly. It appeared that 25 of

them were new recruits since the 2012 strike and the remaining 14 should

have been issued with them but were not because at the time they had

been classified as having overstayed their leave and were scheduled to be

at work when the strike was still in progress, whereas the other employees

who were issued with warnings were simply classified as being absent

without permission. van Heerden’s view was that even though the

warnings might not have been communicated to these individuals it was

communicated in general through union structures and in a communique

to workers. Madondo initially agreed that if there were such persons, and

no other complicating factors applicable to them, his view that the

appropriate sanction was dismissal would change. He quickly

reconsidered this view and decided that the sanction would still be

appropriate because they had breached ‘very key rules’ by not complying

with instructions. Moreover, there had been much effort spent

communicating with workers since the 2012 strike that it amounted to a

serious offence. He would not be drawn on comparisons with Tautona and

Mponeng mine in this regard.

[164] Jacobs claimed that the mine had taken into account the fact that a red

notice was operating in evaluating the appropriate sanction even though

he did not initially mention it as a factor taken into consideration. He

assumed that the chairpersons of enquiries had also taken account of long

service of some employees.

[165] When pressed on why workers at Moab Khotsong were treated more

harshly than workers at Mponeng who had not reported for their Saturday

shifts in circumstances where normal production was scheduled and

losses would be have been considerable, Jacobs emphasised that the

union took responsibility and engaged with management at Mponeng.

However, even though an agreement was reached on 29 April with AMCU

at Moab Khotsong that the status quo regarding Saturday work would

Page 63

remain, that did not feature as an issue in considering the appeals which

took place immediately thereafter.

[166] In re-examination, the difference highlighted by Jacobs between all the

prior industrial action at Mponeng and Tautona compared with what

transpired at Moab Khotsong, was the involvement of local and national

AMCU leadership. Jacobs attributed the failure to reach an agreement not

to take disciplinary action was that attempt to get the union involved were

‘futile’, and unlike the strikes at the other mines the Moab Khotsong action

was not called off.

Evaluation

Were the applicants on strike on 19/20 April 2013?

Issue estoppel

[167] As mentioned, on 7 June 2013 the final order confirming the ruling issued

on the 23 April 2013 effectively confirmed the declarator that:

“The withholding of labour on Saturday, 20 April 2013 at the

Applicant’s Mponeng and Moab Khotsong Mines by the further

respondents is declared to be an unprotected strike.”

[168] By the time the final order was granted, AMCU was aware of the s 54

notice which had been issued, but only opposed an order of costs. AGA

argues that the applicants ought to be estopped from disputing whether or

not they had been engaged in an unprotected strike on the basis of the

principle of issue estoppel.

[169] In Prinsloo No And Others v Goldex 15 (Pty) Ltd and Another2 the

SCA reaffirmed the general test of estoppel:

[23] In our common law the requirements for res iudicata are

threefold: (a) same parties, (b) same cause of action, (c) same

relief. The recognition of what has become known as issue

estoppel did not dispense with this threefold requirement. But our

2 2014 (5) SA 297 (SCA)

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courts have come to realise that rigid adherence to the

requirements referred to in (b) and (c) may result in defeating the

whole purpose of res iudicata. That purpose, so it has been

stated, is to prevent the repetition of lawsuits between the same

parties, the harassment of a defendant by a multiplicity of actions

and the possibility of conflicting decisions by different courts on

the same issue (see eg Evins v Shield Insurance Co Ltd1980 (2)

SA 814 (A) at 835G). Issue estoppel therefore allows a court to

dispense with the two requirements of same cause of action and

same relief, where the same issue has been finally decided in

previous litigation between the same parties.

[24] At the same time, however, our courts have realised that

relaxation of the strict requirements of res iudicata in issue

estoppel situations creates the potential of causing inequity and

unfairness that would not arise upon application of all three

requirements. That potential is explained by Lord Reid in Carl

Zeiss Stiftung v Rayner & Keeler Ltd [1966] 2 All ER 536 (HL) at

554G – H when he said:

'The difficulty which I see about issue estoppel is a practical

one. Suppose the first case is one of trifling importance but it

involves for one party proof of facts which would be expensive and

troublesome; and that party can see the possibility that the same

point may arise if his opponent later raises a much more important

claim. What is he to do? The second case may never be brought.

Must he go to great trouble and expense to forestall a possible

plea of issue estoppel if the second case is brought?'

[25] One can also imagine a situation where a purchaser seeks

confirmation of his or her purported cancellation of the sale in

motion proceedings. The seller may decide that the expensive and

time-consuming game is not worth the candle and thus decide not

to oppose. But if the purchaser were then to sue for substantial

damages the application of issue estoppel in the second case may

cause clear inequity. The same situation will not arise in the case

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where all the requirements of res iudicata are satisfied. In that

event the relief sought in both cases will be the same. The seller

will have to decide whether to speak up in the first case or hold his

or her peace in the second.

[26] Hence, our courts have been at pains to point out the

potential inequity of the application of issue estoppel in particular

circumstances. But the circumstances in which issue estoppel

may conceivably arise are so varied that its application cannot be

governed by fixed principles or even by guidelines. All this court

could therefore do was to repeatedly sound the warning that the

application of issue estoppel should be considered on a case-by-

case basis and that deviation from the threefold requirements of

res iudicata should not be allowed when it is likely to give rise to

potentially unfair consequences in the subsequent proceedings

(see eg Kommissaris van Binnelandse Inkomste v Absa Bank Bpk

supra at 676B – E; Smith v Porritt supra para 10).”

[170] In National Union of Mineworkers v Wanli Stone Belfast (Pty) Ltd 3, in

which a final interdict preventing unprotected strike action was confirmed

after the employees in question had already been dismissed, as in this

case, the LAC held that the principle of estoppel did not prevent the

dismissed employees in that case from asserting that they had been

engaged in a protected strike and that their dismissals were consequently

automatically unfair. Firstly, the court reasoned:

“[27] In this matter, the strict requirements of res judicata are not

applicable, because the cause of action and the relief sought are

not the same. In the first matter, the illegal strike was the cause of

action, whereas in these proceedings the unfair dismissal of the

employees is the cause of action. In the first matter, an interdict

was sought, whereas in this matter reinstatement or compensation

was sought for the unfair dismissal of the employees. The court a

quo found that the respondent succeeded in establishing that res

judicata in the form of issue estoppel prevented the appellants

3 (2015) 36 ILJ 1261 (LAC)

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from raising issues which were finally adjudicated upon in the

interdict proceedings. The question, however, is whether it would

be fair to uphold the plea of issue estoppel on the facts of this

particular case.”4

[171] Turning its attention to the case before it, the LAC found that when the

interim rule was confirmed, the court was most probably not advised that

the strike was over and that the employer should have brought that to the

attention of the court before seeking confirmation of the rule.

Consequently, the LAC held that “… to uphold the plea of issue estoppel

under these circumstances would be contrary to the requirements of

fairness and equity.” 5

[172] In this situation, the facts are similar in that there had been no recurrence

of attempted strike action targeting Saturday work and that the applicants

had already been dismissed by the time the application was heard. It is

true that AMCU knew that a section 54 notice had been in effect during the

alleged strike and could have challenged the final order on the basis that

no strike could have taken place whilst the notice was in operation. On the

other hand, the judge granting the original interim order was not apprised

of the existence of the notice, even though the interdict was only brought

after 20 April. Whatever impact the section 54 notice ultimately would have

had on the determination of whether or not an unprotected strike took

place, it was obviously an issue of potentially great relevance and should

have been disclosed to the court by the applicant both when the interim

order was granted and when confirmation of the order was sought. It might

well have affected the view taken by the judges hearing the application on

both occasions. In these circumstances, I do not think that it sits well in the

mouth of the respondent to seek to rely on the orders granted in those

circumstances to prevent the applicants from raising an issue which it

should have placed before the court itself in any event. For these reasons,

the special plea of issue estoppel should be dismissed even though my

ultimate findings on whether or not a protected strike took place are the

4 At 1270, para [32]. 5 At 1270-1271, paras [33]-[40].

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same. This brings me to the substantive question, whether or not AMCU

members were engaged in strike action.

Were applicants engaged in strike action on the Saturday shifts of 19 and

20 April 2013?

[173] It is clear that the conditions governing Saturday work, which were set out

in collective agreements concluded between AGA and other unions, had

been identified as a source of grievance not only at Moab Khotsong mine

but across the company. AMCU was evidently mobilising workers over the

issue in both regions of the company. Motloi spoke forthrightly on this. The

preponderance of the evidence also points to the conclusion that AMCU

local leadership at Moab Khotsong was galvanising members for a strike

on the Saturday shifts of 19 and 20 April 2013 from at least 3 April 2013

onwards. The top seven were driving this in parallel with the campaign

being conducted by AMCU at other AGA mines on the issue of Saturday

work. Even though evidence was led that management at Moab Khotsong

claimed to be unsure if such action was imminent, it had started to take

concrete steps in anticipation of a strike happening which suggest it

realised it was a very real possibility. Thus, the briefings were issued by

the DJ on an intensive basis for three days beginning on 16 April and

Madondo met with security personnel early that week concerning the

security of people who would be going to work.

[174] At Mponeng and Tautona mines, AGA had managed to prevent or at least

limit the extent of a Saturday work strike by putting the union on clear

terms and taking unequivocal legal action, but it did not act as decisively

when it came to the looming situation at Moab Khotsong. From the time

that the top seven issued an unambiguous threat on 3 April not only to

stop working on Saturday 20 April but also to disrupt bus transport, there

was no evidence that the local leadership intended retreating from the

aggressive and confrontational stance they had adopted: having made the

threat they simply refused to discuss it with management even when it

was pertinently raised with them by van Heerden. Even though they

refused to discuss the issue with management they continued with the

build up to strike action, amongst other things, by holding mass meetings

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at the hostel and the stadium at which the call not to work on Saturday

was repeated. Mine management was also aware of this.

[175] In light of the threats made to interfere with bus transport, it is extremely

improbable that the chanting crowd which gathered at the bus terminus on

Friday afternoon immediately after an AMCU meeting at the hostel was

there for any other purpose than to discourage anyone from thinking of

boarding the bus waiting there, whether or not direct threats were actually

made to the driver of the bus. No other plausible reason was advanced

why they would have been toyi-toying next to the passenger entrance to

the bus at that time of day in falling rain. There is also the additional

evidence of complaints being received by Management from NUM

representatives about AMCU threats in the week leading up to Saturday.

Added to this there was the undisputed evidence of a serious assault

perpetrated on an NUM member, Mr Faife, who was on his way to work on

Friday. Obviously strike action was imminent on Friday evening and steps

were being taken to minimise attendance at work by interfering with bus

transport to the mine.

[176] Two issues muddy the water as to whether the applicants were engaged

in strike action. The first is whether or not they could conceivably have

been refusing to comply with a lawful instruction to work in the light of the

legal and practical effect of the s 54 notices. Secondly, even if workers

were obliged to perform some duties while the DMR notice was in force,

was the mere fact that they did not report for work, a sufficient reason to

conclude that they were participating in the strike, if the reason they gave

for not reporting for duty was that there was no transport to the shaft,

which was situated some 13 kilometres from the hostel?

The legal effect of the s 54 notice

[177] From the evidence discussed above it is apparent that there is

considerable controversy whether or not the effect of the section 54 notice

was that most workers, including the vast majority of the applicants, had

no duties to perform, nor any obligation to do so. This is one of the issues

that should have been squarely placed before the judge considering the

interdictory relief.

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[178] As a matter of principle, there is no disagreement between the parties, ,

that workers could not be said to be striking if they did not perform work

which they were not lawfully required to perform because of the section 54

notice.6 The controversy is whether ordinary mining crews could lawfully

be required to perform work. AMCU argued that essentially the effect of

the section 54 notice and the red notice was that mining crews

underground were required to remain at their waiting places because the

section 54 notice emphasised that crews were to be “...removed from the

working places to a safe place”. It is common cause that waiting places

were considered to be safe places. The area of dispute concerns whether

what constituted a safe place extended beyond the waiting place and, if

so, whether any work could be performed in that extended area.

[179] As we have seen, Madondo’s view was that a waiting place is simply the

last safe place before entering a working area in a particular level of the

mine and the area from the station where crews entered a level, up to and

including the waiting place, is a safe place. By contrast, he understood a

working place to be a place where productive mining operations are

conducted. On this interpretation the notice restricting crews from entering

‘working places’ did not mean they could not perform activities in a safe

place. Hence Madondo’s instruction in the Red Note that employees

should proceed to their waiting places, hold safety meetings and wait for

further instructions but they could not enter their usual working places,

which only essential services would have access to.

[180] By contrast, the applicants contend that the term ‘working place’ includes

any place where employees perform work, which would include cleaning

work performed on tracks in cross cuts. Accordingly, such work could not

be considered an activity taking place within a safe place, but is work

performed in a working place. Consequently, the performance of such

work would be in contravention of the section 54 notice, which required

crews to be removed from “the working places to a safe place”. Madondo

would not agree that the place where tracks were cleaned within the safe

area constituted a working place as such, but somewhat equivocally called

6 See e.g., Simba (Pty) Ltd v FAWU & others (1997) BLLR 602 (LC)

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it an “an area of work.” The cleaning work that crews were expected to

perform fell within the ambit of the ‘further instructions’, which they were

told to await from their supervisors.

[181] What constitutes a ‘working place’ for the purposes of the Mine Health and

Safety Act is a matter of legal interpretation. Although Madondo was not

specifically confronted with the definition of a ‘working place’ as defined in

section 102 of the MHSA7, his notion that it was confined to the area

where productive mining operations were performed by a crew was

challenged under cross-examination.

[182] However, what constitutes a ‘working place’ in the general terms of that

definition does not do justice to the particular way that term is used in the

functional design and architecture of the MHSA. Thus, section 27 (2) of

MHSA imposes an obligation on an employer to designate every ‘working

place’ at a mine, in the absence of that being done by a collective

agreement concluded under s26 of the MHSA. The designation of working

places in a mine is a pre-requisite for the appointment of health and safety

representatives under section 25 of the same act and a building block for

the health and safety organisational structure on a mine. Consequently,

when the term ‘working place’ is used in the context of a particular mine, it

immediately raises the question of whether it can simply be interpreted in

the broadest sense as argued for by the applicants or whether it ought to

be interpreted as a reference to working places designated as such at that

mine Also, when an inspector issues an instruction under section 54 (1)

the instruction is aimed at halting or suspending operations or activities in

parts or all of the mine in question, and does not necessarily have to be

framed with reference to working places.8 If, as in this case, the notice

7 S 102 of the MHSA contains the following definition: 'working place' means any place at a mine where employees travel or work 8 Viz, “54 Inspector's power to deal with dangerous conditions (1) If an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the inspector may give any instruction necessary to protect the health or safety of persons at the mine, including but not limited to an instruction that-

(a) operations at the mine or a part of the mine be halted;

(b) the performance of any act or practice at the mine or a part of the mine be suspended or halted, and may place conditions on the performance of that act or practice;

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uses that term, it is still on the face of it an arguable point whether it is

intended to be a reference to identified designated working places or just

to any place where work is performed.

[183] However, for the reasons which follow, it is not necessary to determine if

the obligations on mining crews required them to perform work cleaning

the cross cuts, or if such work would have constituted a contravention of

the MHSA.

[184] The parties agreed as a matter of fact that, at a minimum, normal

productive mining operations were suspended during the period of the

notice. To the extent that a factual dispute arose, it concerned the degree

to which activities performed during the notice constituted work which, if

not performed, would cause economic loss to the mine. As previously

noted, in the course of the cross examination of the applicants’ witnesses,

the scope of work AGA claims that crews were required to perform for the

duration of the section 54 notice was not meaningfully canvassed with

them. In my view, it is therefore unnecessary to go further into the extent

of the duties that crews might legally have been required to perform in the

crosscuts because the applicants could not have realised this issue would

be raised in evidence by the employer or that it would assume the

proportions it did. The ambit of duties they allegedly would have performed

is therefore properly confined to the version that the company put to the

applicants’ witnesses.

[185] For present purposes, it is sufficient to recognise that it was within the

scope of the section 54 notice and the Red Note that crews were obliged

to report to their waiting places and that a failure to do so would have

amounted to a failure to obey a lawful instruction. Further, their presence

there was not only for the purpose of reviewing safety procedures, but also

so they would be on standby in the event that ordinary mining operations

could resume. If they were at the waiting places when this happened,

(c) the employer must take the steps set out in the instruction, within the specified period, to rectify the occurrence, practice or condition; or

(d) all affected persons, other than those who are required to assist in taking steps referred to in paragraph (c), be moved to safety.”

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there would have been a minimal delay in restarting mining operations if

the s 54 notice was uplifted during their shift. As such, a refusal to comply

with the instruction in the Red Note entailed at least a refusal to report to

the waiting place and to remain in attendance there as well as a failure to

attend the safety training conducted there. This refusal amounts to strike

action in the context of the campaign to alter the terms of Saturday

working arrangements. The seriousness of such action is a separate

matter. This immediately raises the second issue namely: was the failure

of workers to report at the mine for their shifts a sound basis for inferring,

in the absence of evidence to the contrary, that their absence was a

consequence of their participation in the strike.

The cause of the failure to report for duty

[186] There was a dramatic drop in attendance by workers reporting for duty

starting with the night shift commencing on Friday evening and continuing

through Saturday. Barely more than a third of all those rostered to work

reported on any of the shifts during that period. To the extent that the

absence of company bus transport might have presented an insuperable

obstacle for any of the hostel dwellers to get to work if they had wanted to,

only 195 of the 585 AMCU members charged with striking lived in the

hostel, so at least a 380 others who did not report for work would have

travelled to the West Vaal premises from outside locations.

[187] In total, 181 AMCU members reported for duty at the mine or at the

helipad, amounting to 9.5 % of all the workers who did so, whereas AMCU

members comprised 17% of the workforce. This indicates that the

attendance rate of AMCU members was half of what could reasonably be

expected if non-participation in Saturday work that weekend had been

evenly spread across the whole workforce.

[188] In comparative terms, the response of AMCU members to the exhortations

broadcast to the hostel dwellers to report to the helipad was even more

lacklustre than the admittedly poor response by non-AMCU members:

non-AMCU members were more than twice as likely to report at the

helipad compared to AMCU members, assuming that the vast majority of

all those who reported to the helipad would have come from the hostel.

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Although, in absolute terms, nearly fifteen times as many non-AMCU

members reported to the helipad compared to AMCU members, that

number only accounted for 15 % of non-AMCU hostel residents.

[189] Overall, 1327 out of 3043 workers scheduled to work a Saturday shift

reported for work or went to the helipad. This means that about 43% of the

total Saturday shift workforce visibly demonstrated an intention or

willingness to work. Of the 766 AMCU members who ought to have

attended work according to AGA only 181 did so or reported to the helipad

showing that about 23 % of AMCU members on a Saturday shift

demonstrated an intention or willingness to work their shift, which

represents an AMCU participation rate just over half that of non-members.

Expressed in different terms, AMCU members rostered to work would

have made up about 25 % of the Saturday shift workforce, but those

members who did attend or report to the helipad made up only 13,6 % of

the total workforce which did either. This shows that AMCU members were

noticeably ‘under-represented’ amongst those demonstrably willing to

work, whereas non-AMCU members were correspondingly ‘over-

represented’ in that group, relatively speaking. These figures are not really

surprising given that AMCU local leadership was driving the campaign and

the campaign was directed at contesting working arrangements which had

been agreed to with the other unions including the NUM, in particular.

[190] The relatively high proportion of non-attendance by AMCU members

compared to non-AMCU members strongly supports an inference that a

significant number of AMCU members had decided not to go to work on

their Saturday shift to support the campaign to change the terms of

Saturday work and consequently were on strike.

[191] That said, it is also true that a large number amounting to approximately

half the remaining non-AMCU workers who should have reported for work

(1119 out of 2277) did not do so. None of these workers were subject to

disciplinary enquiries. It appears AGA adopted the view that they were not

wilfully absent because they were not AMCU members and no other union

was agitating for a change in the overtime regime, so it was accepted that

the absence of this large group of individuals was due to other legitimate

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reasons such as a lack of transport or intimidatory tactics of AMCU

members. It took this view even though it was not disputed that two-thirds

of workers did not live at the hostel and on AGA’s own version should not

have been reliant on bus transport to the shaft. This would mean that

about 1500 non-AMCU members ought to have been equally able to get to

work as the AMCU members who did not live on the mine, so it would

have been reasonable to expect that about 380 more non-AMCU

members ought to have reported for their shift. By contrast, a lack of

transport was not regarded as an acceptable defence to the charge of

striking by AMCU members. The implications of these figures will be taken

up later.

Were the dismissals automatically unfair?

Only AMCU members were dismissed.

[192] S 5(2)(c) of the LRA provides:

“(1) No person may discriminate against an employee for exercising any right conferred by this Act.

(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following-

(a) …

(c) prejudice an employee or a person seeking employment because of past, present or anticipated-

(i) membership of a trade union or workplace forum; …”

Read with s 187(1), which provides that a dismissal “…is automatically

unfair if the employer, in dismissing the employee, acts contrary to section

5...”, these sections frame the ambit of this claim.

[193] It is common cause that only AMCU members were dismissed for

participating in the strike. The question is whether this was in

consequence of selecting them for dismissal in breach of the provisions

above, or put differently that it was their union membership which was the

primary reason for their dismissal. The basis of this claim has a number of

strands. The ones which require the most attention relate to the claim that

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only AMCU participants in the strike were dismissed and the claim that the

company accepted justifications for non-attendance from non-AMCU

members which it did not accept from AMCU members. Before dealing

with those two grounds, I will address the others.

Miscelaneous allegations of the applicants being singled out solely on

account of their union membership.

[194] A number of other reasons suggest a direct discrimination on account of

union membership were advanced:

194.1 There was evidence tendered of direct comments made by

various Chairpersons of disciplinary or appeal enquiries to the effect

that they were being dismissed because of their AMCU membership.

194.2 NUM members who had participated in the month long

unprotected strike during 2012 had not been dismissed and had

been issued with final warnings, whereas twenty two AMCU

members in this instance who had not received written warnings

because they had not participated in the 2012 industry strike were

nonetheless dismissed including two of them who had testified to this

effect in their disciplinary proceedings.

194.3 The company made no effort to exclude some 21 AMCU members

who had a justifiable reasons for not being at work on their Saturday

shift, in circumstances where it ought to have known that this was the

case at the time the hearings were conducted.

194.4 The company had planned to dismiss AMCU members en masse.

194.5 The company dismissed 22 AMCU members who had signed

NUM membership forms, which NUM had submitted to the company

at the time of the disciplinary enquiries, but not 42 others who had

signed the membership forms and were not previously AMCU

members.

[195] Dealing with the question of whether there was an intention to dismiss

AMCU members en masse, the applicant relies principally on an internal

planning outline of the disciplinary enquiries. After outlining the process for

conducting individual enquiries with small groups of workers, and

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identifying the possible risk that workers might refuse to board the buses

to come and attend the enquiries, the document contains the following:

“Alternative Plan: (employees refuse to attend the scheduled disciplinary

hearings)

• Brief to MKM dismissed employees to report to Eagle’s roost on

Thursday by no later than 10:00 or else be dismissed.

• Hear the cases as per the above plan or mass dismiss AMCU

members who participated in the stay away on Thursday.

• Brief dismissed employees of their right to appeal (appeals to be

heard by Friday, 26 April 2013).”

(Underlining added).

[196] Read in context I think the passage relied on by the applicants simply

indicates that the company was considering what it should do if the

individual enquiries which intended to proceed with could not take place.

What was envisaged was that in the absence of AMCU members

attending enquiries and advancing an explanation for their absence from

work they would all be dismissed, but that would still be subject to another

opportunity to provide a defence in an appeal hearing. Elsewhere I have

discussed the fact that the decision to only charge AMCU members for

participation in the strike was not an unreasonable one as such.

[197] There is no doubt that Jacobs struggled to explain why 39 AMCU

members without final written warnings for previous strike action were

dismissed, given that so much emphasis was placed on the importance of

such warnings being issued in the company’s attempt to justify the

differential treatment of workers who went on strike at Tautona and

Mponeng before the final written warnings for the 2012 strike had been

formally issued to them. As mentioned above, 14 of them simply had not

been issued with the warnings in error, and ought to have received them.

The remaining 25 were correctly recorded as not having written warnings.

In the context of the claim of automatically unfair dismissal, I am not

satisfied however that AGA intended to treat these individuals differently

because of their union membership, but that it negligently failed to verify

that all those dismissed indeed had received the warnings. for the 2012

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strike. During the trial, the company eventually conceded this omission

and offered to reinstate 23 of the applicants who were not on a final written

warning at the time of the dismissal, with six months back pay. Two of this

group were not offered reinstatement because they were dismissed for

other misconduct as part of the top seven or the 17 alleged instigators.

The quantum of backpay is still a matter of contention which is dealt with

later.

[198] As regards the issue of the company pressing ahead with enquiries

against individuals whose own attendance records showed that they were

not absent from work or had a good reason not to be there, such as being

on sick leave, the explanation given by van Heerden for these omissions

was, in the main, a plausible one. The attendance register which was used

at the disciplinary enquiries was drawn from attendance records obtained

on Saturday 20 April. In the case of 18 applicants, their reasons for non-

attendance was that, the relevant documentary records were only filed

after the attendance register of 20 April was extracted and accordingly did

not appear on it, or their attendance was not captured because the

clocking records were drawn from shaft clocking points, and did not record

clocking ins at access gates. In the case of two others, they were

erroneously recorded as being rostered for work when they should not

have been.

[199] The company may be criticised for not having been as thorough as it

should have in not checking records against the most recent information,

but in the context of conducting large-scale hearings of this nature under a

degree of time pressure owing to concerns about possible mass action of

the kind experienced that Mphahlele and Tautona mines if they did not

conduct the hearings expeditiously, these omissions were not a reflection

of a deliberate strategy of disregarding exonerating factors.

[200] Much was made of the 64 stop orders and the AMCU members who were

amongst us who signed NUM membership forms, but whose change of

membership was not recognised, which resulted in them being identified

as AMCU members for the purposes of disciplinary action. On evaluation

of the evidence, I am satisfied that AGA did not receive the stop orders

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and did so on the basis that it had reason to believe that some of the

forms had been completed opportunistically because the timing of the

submission of the forms conveniently coincided with the institution of the

disciplinary proceedings. In consequence, it did not recognise the

apparent change of allegiance of the 22 odd AMCU members and they

were disciplined together with the others. The fact that they did not take

disciplinary action against those who were existing members of the NUM

who had signed the forms or against signatories who previously belonged

to no union was consistent with AGA’s general approach of not charging

non-AMCU members on the basis that they were not affiliated to a union

that had instigated or supported the strike action. How the company

actually accepted the AMCU members’ change of allegiance,that also

could have been interpreted as an approach favouring NUM over AMCU

as it might suggest that employees who switched allegiance to NUM would

be protected. As mentioned elsewhere this was in fact an allegation made

by one of AMCU’s witnesses. I am not persuaded on the evidence that

AGA acted in bad faith in rejecting the forms at the time that they were

submitted and in not recognising the change of allegiance.

[201] Makwekwe, Gwadiso, Tiyo and Lebodi all testified to specific remarks

expressly demonstrating hostility towards AMCU members and indicative

of an intention to proceed with their dismissal simply on that basis. AGA

attacks the credibility of Makwekwe and Gwadiso because their names did

not appear on the attendance register as being present at the enquiries

and there were no documents available that would have demonstrated

they had attended one. Moreover, they appeared in the original list of 217

applicants, whom AMCU claims did not attend disciplinary enquiries. It is

true that Gwadiso said she saw Ndlovu at the disciplinary hearings, though

he never testified to seeing her there. It is also true that AGA was not able

to produce a hearing bundle for everyone who did attend a hearing, but it

is unusual for there to be neither an attendance record nor documents.

[202] In Lebodi’s case, he claimed that his enquiry and his appeal hearing

where chaired by the same individual, but this was shown to be incorrect.

He had claimed that it was the appeal chairperson who had told him “You

must go away with your AMCU”. The fact is that he was wrong about his

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claim that both hearings were chaired by the same person certainly puts

the credibility of his account in some doubt. Though it is not implausible

that in the context of the events leading up to the dismissal of the top

seven and the instigators, that some remarks expressing hostility towards

AMCU might have been made, it seems somewhat improbable that a

person chairing an enquiry would risk making such a foolish remark. Tiyo’s

evidence was that he had given a note showing that he was at training to

Mr Steyn who was coordinating activities at the disciplinary hearing. Steyn

had allegedly torn up his note and said words to the effect that: “We do not

want AMCU people here.” Steyn could not recollected if he had spoken to

Tiyo but pointed out that he was not conducting any of the hearings

himself and that any explanation Tiyo had tendered would have been

dealt with in his enquiry, not by him. He also queried why he would make

such a risky statement and behave so vindictively to one individual in the

context of AGA conducting 300 enquiries.

[203] The allegations made by the individual witnesses are serious. However in

the context of a carefully planned bureaucratic enquiry process conducted

by HR personnel it seems somewhat improbable that such comments

would have been made openly in that environment. It also seems such

outrageous statements would not have been noticed by other workers

present, but none of these allegations were corroborated. Consequently I

am not inclined to attach any weight to them.

Non-AMCU members participated in the strike but were not dismissed

[204] AMCU contends that only AMCU members were subject to disciplinary

proceedings for their alleged participation in a strike and were ultimately

dismissed. It is not a matter of dispute that NUM and other non-AMCU

members were immunised from any disciplinary action that AMCU

members were subjected to. In essence, AGA contends that it was

inherently improbable that NUM members were participating in the strike

whereas it was inherently probable that AMCU members were.

Consequently, it was perfectly rational for it to subject only AMCU

members to disciplinary enquiries.

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[205] Firstly, AGA points out that NUM was not supporting the calls for

amending Saturday working arrangements and was a party to the

collective agreements which regulated them. AGA argues that on this

basis alone, the participation of NUM members must fail because of the

absence of a demand emanating from their union. While this certainly may

be indicative that NUM members were not supporting the strike, of course

it does not follow that because their union did not officially support the

strike that none of them participated in it. In theory, it is not implausible

that some NUM members too might have liked to see an improvement in

the Saturday working arrangements, despite the official stance of their

union.

[206] Further, AGA argues that, apart from the evidence of Lebodi, who claimed

that the NUM members he travelled to work with had gone to a two-hour

meeting at the hostel, there was no direct evidence of NUM members

being on strike. Mphahlele could not offer any evidence that they had

participated when asked to do so under cross examination. Added to this,

there was the evidence of at least one serious incident of assault on an

NUM member on his way to work and there were ongoing complaints

starting on Friday evening from NUM local leadership about its members

being intimidated and expressing their own members wish to report for

work. Against this, AMCU argues that Rohrs had previously given

evidence at the disciplinary enquiry of the top seven that “various

employees”, most of them being AMCU members, had embarked on the

strike. Moreover, he could not identify more than a handful of AMCU

members in the crowd visible in the video footage. Magakwe also

conceded that it was possible that NUM members were part of the crowd

gathered at the bus terminus on Friday evening. In this regard, it is also

noteworthy that there was no attempt by AMCU to identify any non AMCU

members amongst the crowd appearing in the footage. Although there

was some very generalised evidence that the campaign against existing

Saturday working arrangements enjoyed wide support beyond AMCU

membership, there was no direct evidence of non-AMCU members at

Moab Khotsong expressing their support. All in all, it must be said that the

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direct evidence of NUM participation in the strike is extremely slender

especially having regard to the large numbers of those absent from work.

[207] Also, if one considers the evidence of the attendance figures the

significantly higher proportionate attendance of non-AMCU members

clearly indicate that it was much more likely that a non-AMCU member

would have reported for work than an AMCU member which strongly

suggests they were less likely to have supported the strike. In my view, all

the evidence is not enough on its own to establish on a balance of

probabilities that non-AMCU members were probably participating in the

strike.

Lack of transport was only accepted as a legitimate reason for non-

attendance by non-AMCU members

[208] Another distinct strand in AMCU’s argument is that when AMCU members

had tried to explain that their non-attendance at work during the strike was

owing to the absence of transport, this defence was rejected out of hand.

Yet, it was one of the explanations provided by NUM for its members not

reporting for work and that explanation was not questioned by the

company. It is common cause that only one bus was put into service only

on the evening of 19 April and that buses never left the transport terminus

after no one boarded it. It is also common cause that AGA decided not to

provide further transport for the remainder of the Saturday shifts.

Consequently, it is a fact that there was no bus transport provided by the

mine for the Saturday shifts.

[209] AGA argues that this issue can only be considered in the context that

AMCU members were on strike and NUM members were not. Because

NUM members were not on strike it followed that they would have

tendered their services if there was no transport or acts of intimidation. By

parallel reasoning it was for AMCU members to discharge the evidentiary

burden that they would have tendered their services if there was transport,

because they were on strike. Because only a handful gave evidence at the

trial that this was the reason they could not attend work, the rest of the

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AMCU members who rely on this defence had failed to discharge the

burden of proving this was the reason each of them did not report for work.

However, when this justification was offered as a defence by a number of

AMCU members at their disciplinary enquiries, it was simply not accepted.

In terms of the summary of 557 applicants enquiries referred to by the

applicants in the course of evidence, approximately 250 of them had

advanced lack of transport as the sole reason or one of the reasons why

they had not reported for their Saturday shift.

[210] Jacobs expressed the view that AMCU members who wished to

disassociate themselves from the strikers could have reported to the

helipad but only 13 did so. He agreed that the mine itself could not prove

which individuals had not attended work because of the lack of transport,

but also pointed out that only a third of the mine’s workforce lived at the

hostel. AGA argued that as far as AMCU members advanced a defence

that there was no bus transport available they could still have got to work if

they had wanted to as was evidenced by the testimony of Ndlovu,

Makwekwe, Mzileni, and WA1. Madondo also testified to seeing Mguzulwa

and Shumi (members of the top 7) at the mine on Saturday. Further, 214

leaders reported at the gateway training centre including 16 who were

AMCU members. Most significantly, 43% of those rostered to work did

report for work or reported at the helipad, including 181 AMCU members.

AGA relies on these figures to show that it would have been relatively

easy for those who wish to get to work to have done so even in the

absence of company transport.

[211] It follows that it was also relatively easy for the great majority of those who

did attend work on the Saturday shift to do so. Thus, we know that 952

non-AMCU members reported for duty on their Saturday shifts which

comprised about 41 % of non-AMCU members rostered to work. We also

know that a further 194 reported to the helipad. That leaves 1338 non-

AMCU employees who were rostered to work who did not report for work

or at the helipad. On the basis that two thirds of that number did not live at

the hostel on the company’s version, about 896 non-AMCU members

should also not have been dependent on bus transport to get to the shaft.

In passing, it should be mentioned that it although it was said that the bus

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transport was for the hostel residents, it was never put to witnesses living

off the mine premises that they were obliged to use their own transport to

get to the shaft or that they were not entitled to catch company buses from

the hostel to the shaft.

[212] The company accepted the absence of the 1338 non-AMCU members,

despite assuming that they wished to work, because they could not get

transport or that there were acts of intimidation. Evidence of intimidating

action presented at the trial was confined to the activities of the group

gathered at the bus terminus and the assault on the NUM member in the

early hours of 20 January. There was no evidence led of any intimidation

taking place at the shaft itself. If it is accepted that the impact of the

chanting crowd at the transport terminus would have mainly affected

residents of the hostel who would otherwise have used the bus transport,

the fact that so many other non-AMCU members still reported for work

strongly suggest that the intimidatory actions mentioned did not impact on

the decision taken by numerous individuals to report for work, even if it is

also accepted that the intimidatory action probably had a ripple effect

beyond those workers immediately exposed to it. Moreover, even in the

environment close to the hostel when the opportunity was provided for the

workers on the day shift to report at the heliport 194 non-AMCU members

still did so. There was no evidence any of those workers were subject to

harassment or intimidation.

[213] In summary, the effective basis for differentiating between AMCU

members who did not report for work and non-AMCU members was that:

213.1 AMCU members were more probably absent because they were

striking since AMCU leadership was driving the campaign to change

existing Saturday work arrangements, whereas NUM was not.

213.2 Non-AMCU members who did not report for work probably failed

to do so either because there was no transport or there was

intimidation.

213.3 On that basis AGA felt it was justifiable to select only AMCU

members for disciplinary action on the grounds of participating in an

unprotected strike.

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213.4 However, when AMCU members advanced the lack of transport

as the only reason for not reporting for work this justification was not

acceptable because either they ought not to have been reliant on the

bus transport anyway, or they should have made other arrangements

as so many other workers did.

[214] AGA contends that the differentiation in treatment is simply a reflection

that AMCU members were participating in the strike and non-AMCU

members were not. Based on the attendance figures discussed above, it

was more likely that an AMCU member would have been absent from

work than a non-AMCU member. Therefore as an initial organising

principle for deciding who was most likely have participated in the strike,

this was not an irrational or inherently unfair basis for selecting candidates

for disciplinary action. This is quite apart from the fact that no other unions

were supporting the action. However, when it came to deciding who would

be dismissed and the justification for non-attendance advanced by an

AMCU member was the lack of transport, that defence was rejected out of

hand as unacceptable. This resulted in an anomalous disparity of

treatment which is difficult to justify.

[215] Even if non-AMCU members were not presumed to be on strike, their non-

attendance was still excused on a blanket basis that they could not get to

work because of a lack of transport or intimidation. AGA claims that the

differential treatment was simply based on participation in the strike action,

but the point is that this defence directly concerns whether or not such

non-attendance was because of participation in strike action or some other

reason.

[216] It is important to note at this juncture, as observed above, that despite the

criticisms of the company in overlooking attendance records in the initial

enquiries, it did accept other explanations from AMCU members being

absent from work. The ostensible reason it did not accept an absence of

transport as a reason was that a significant number other individuals did

report for work. However, it did not apply the same logic to non-AMCU

members to whom it imputed that justification. No good reason was

advanced for the different approach adopted. It is one thing to argue that

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charging AMCU members with striking was not unfairly discriminatory.

However, it is quite another to say that AMCU members who cited lack of

transport as the real explanation for their absence were required to show

that they could not reasonably have found alternative means of travelling

to the shaft, if they wanted to rebut the reasonable inference that they

were absent because they were on strike, when other workers were

excused for this reason without any need to demonstrate they made some

effort to get to work. AMCU members who advanced this defence to a

charge of participating in unprotected strike action, were unfairly

discriminated against vis-à-vis non-AMCU members whose absence for

the very same reason was excused simply because they did not belong to

a union whose local leadership had supported the strike action.

Accordingly, AMCU members who advanced a defence of lack of transport

were unfairly discriminated against because of their union membership

and their dismissals were automatically unfair for that reason.

[217] In any event, not all of the applicants had advanced that defence, so it still

remains to consider if the dismissals of the remainder of the applicants

were substantively and procedurally unfair. To the extent that I am

incorrect in my finding in respect of those who advanced a defence of lack

of transport the analysis which follows would, in that case, apply to them

too.

The Substantive and Procedural Fairness of the dismissals

Procedural unfairness

[218] The procedural fairness of the applicants’ dismissals requires

consideration of two issues. The first relates to the steps taken by the

employer to give the strikers a reasonable opportunity to reflect on what

they are doing and to abandon their strike action. The second concerns

the provision of an opportunity for strikers to make representations why

they should not be dismissed for striking before a final decision is taken.

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Steps prior to the dismissal

[219] The proper starting point for analysing this leg of procedural fairness is

item 6 (2) of the Code of Good Practice: Dismissal which reads:

“Prior to dismissal the employer should, at the earliest opportunity,

contact a trade union official to discuss the course of action it intends to

adopt. The employer should issue an ultimatum in clear and

unambiguous terms that should state what is required of the employees

and what sanction will be imposed if they do not comply with the

ultimatum. The employees should be allowed sufficient time to reflect on

the ultimatum and respond to it, either by complying with it or rejecting it.

If the employer cannot reasonably be expected to extend these steps to

the employees in question, the employer may dispense with them.”

[220] In National Union of Metalworkers of South Africa (NUMSA) v CBI Electric

African Cables the LAC held that the purpose of contacting the union is:

“‘Firstly, it affords the union an opportunity to persuade the strikers to

resume work and secondly, it provides a safeguard against possible rash

action by the employer.”9

[221] In this instance, there was no attempt made to issue an ultimatum to the

workers at the time the strike commenced on Friday evening or during the

course of Saturday. Announcements were made from security vehicles

every 10 minutes during the night of Friday 19 and April and early the

following morning. All these announcements only told workers who could

not get to work that they could report to the helipad. No mention was made

that people who did not report for work were engaged in an unprotected

strike , nor were they advised of the consequences of not going to work or

reporting to the helipad, namely that they could be dismissed.

[222] It was argued by Jacobs that the Management brief issued on 16 April by

Madondo, which the DJ had read out at regular intervals was a ‘pre-

emptive’ kind of ultimatum. The brief itself simply asserts that if workers

collectively unilaterally withdrew from Saturday work that would be ‘similar

to strike action’ (my emphasis) and that the company ‘reserved its rights’

9 [2014] 1 BLLR 31 (LAC) at para 35

Page 87

to take ‘the necessary action when people do not adhere to existing

agreements’. The somewhat blandly worded brief does not say that a

collective failure to report for Saturday work that weekend would be

regarded as unprotected strike action and that the company would take

disciplinary action which might include dismissal of anyone participating in

such action.

[223] Even if the brief might in principle have served a purpose similar to an

ultimatum, it fundamentally failed to state ‘in clear and unambiguous

terms’ what was ‘required of the employees’ and what sanction [would] be

imposed if they [did] not comply with the ultimatum’. There was therefore

no direct warning to employees in advance what the consequences of

them not honouring the Saturday work arrangement could be nor was

there an attempt to communicate the consequences of pursuing such a

course of action when the mine was bombarding workers with

communications to report to the helipad. If reporting at the helipad was

regarded as a substitute for reporting to work and if it was intended that

employees who did so would not be regarded as participating in

unprotected strike action this was also never conveyed. Curiously, it was

only on the following Monday that management thought it prudent to point

out in Madondo’s briefing that day on the events of the weekend that “final

warnings issued following the previous unprotected strike in 2012 are

still in force.” Prior to the Saturday shift it had not been felt necessary to

bring this factor to any of the employees’ attention, even though it was a

decisive factor according to AGA in the decision to dismiss most of the

applicants.

[224] The second issue concerns what attempts were made to contact a union

official to advise on the course of conduct the company was intending to

embark on if workers did not report for work. The degree of contact

between AGA and union officials in the events leading up to 19 and 20

April and during the course of the strike or a matter of considerable

controversy. Essentially, this issue revolves around a few limited cellphone

communications between Jacobs and Mphahlele

Page 88

[225] In considering these communications it is necessary to be mindful of the

evolution of AGA’s evidence on these communications in the course of the

trial and the consequential amendment of its statement of response, which

have already being discussed above.

[226] When Mphahlelewas cross-examined during his initial evidence, it was put

to him that there were communications between him and Jacobs on 19

and 20 April, which appeared, at face value, to be possibly contrary to the

admission made by the company and recorded in the pre-trial minute that

“The respondent made no contact with any AMCU trade union official on

19 and / or 20 April 2013 to discuss the course of action that it intended

adopting in relation to the individual applicants herein.” At that point in the

proceedings the applicants knew that the respondents were seeking to

withdraw that admission on the basis of the conversations mentioned.

Notwithstanding the recorded admission, the applicants had also

nonetheless admitted by that stage that Mphahlele had received an SMS

from Jacobs at 10h55 on Saturday morning. That SMS clearly made

reference to an “earlier telecom” between them. Jacobs also requested to

meet with Mphahlelethat morning and requested the urgent intervention by

Mphahlele and the AMCU national leadership. Jacobs went on to express

his concern about the situation having the potential to escalate and to lead

to widespread violence and unprotected strike action at AGA’s Vaal River

mines. The focus of the SMS’s was on achieving a resolution, but contains

no mention of direct or indirect threats of dismissal if workers did not report

for work.

[227] According to Jacobs, the earlier telephone conversation took place at

around 07H00, at which point he claimed Mphahlele as noncommittal

because he was involved in a church function but nonetheless undertook

to revert to him. The previous day Jacobs claimed that he had attempted

to get hold of Mphahlele sometime around 18 H00 and 19 H00 but

Mphahlele had not taken his calls and he left a detailed voice message

asking him to call him back and intervene in the matter.

[228] It was common cause that there was a further conversation between them

about an hour after the SMS was sent on Saturday morning and that they

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agreed to have a meeting, subject to Jacobs reverting to Mphahlele

However Jacobs did not revert as there was no chance of recovering the

shift and AGA’s focus shifted towards formulating its legal strategies going

forward.

[229] What emerges from these communications is that Jacobs did attempt to

contact Mphahlele to seek his assistance though he did not specifically

advise him of the course of action that AGA intended to take against

AMCU members if they persisted with their strike. Mphahlele did not recall

Jacob’s alleged attempt to communicate in the evening of 19 April, but

conceded that he might have been involved in a church function on the

Saturday morning. In Mphahlele’s initial evidence he did say that if he had

known that ultimatums had been issued and if he had been contacted

about an alleged unprotected strike he would have driven there and tried

to speak to Jacobs and the relevant mine management to see if the union

could discuss the issue and assist.

[230] Given the reference in the SMS to the previous conversation earlier that

morning, it seems probable that the conversation did take place and that

the subject matter of conversation was reasonably accurately reflected in

the SMS itself. Otherwise, Mphahlele could have been expected to take

issue with it . In the circumstances, it does not seem that Mphahlele acted

with any speed to deal with the matter because a period of approximately

5 hours appears to have elapsed between the early morning conversation

and the time when he agreed to meet with Jacobs. Even if there had been

no mention of ultimatums as such it ought to have been obvious that an

unprotected strike was underway and that the company was seeking the

assistance of the national union officials to resolve it.

[231] The more controversial communication between Mphahlele and Jacobs is

the one of 16 April, which Jacobs first alluded to in his evidence in chief,

but which had never been put to Mphahlele under cross examination.

Leave was granted on 23 March 2015 to allow the respondent to remedy

this defect in its cross-examination and the applicants were also permitted

to cross-examine Jacobs further on this call following Mphahlele’s

additional cross-examination and re-examination.

Page 90

[232] The evidence is canvassed above under the events of 16 April.

Essentially, Jacobs claimed that he had conveyed his concerns to

Mphahlele about the threat to boycott Saturday work, reminding him of the

legal action taken at Tautona and Mponeng and expressing the hope that

it would not be necessary to follow the same route. He also claimed to

have outlined the ramifications of strike action for AMCU and its members.

The upshot of Mphahlele’s evidence was that he could not recall the

specifics of a conversation on 16 April but recalled a conversation with

Jacobs about AGA engaging with AMCU on the Saturday work issue. He

was more confident that there had not been a discussion about the

situation at Moab Khotsong as distinct from a general discussion about

engaging on the Saturday work issue. He was also insistent that if he had

been specifically forewarned of impending strike action at Moab Khotsong

he would have gone to the mine the following day.

[233] From Jacob’s email to Hart on 16 April, it is reasonable to assume there

had been a communication between him and Mphahlele that day.

However, the email reveals no more than Jacobs recording an intention to

formally engage AMCU in discussions on the Saturday work issue. It gives

no indication that a warning of impending strike action at Moab Khotsong

had been canvassed with Mphahlele It is true that Mphahlele’s recollection

of the details of each specific conversation he had with Jacobs was poor,

and he did not claim to have the ‘photographic mind’ Jacobs appeared to

have. He was more confident that they had never discussed an imminent

strike at Moab Khotsong because his recollection was that the only

discussion on engagement on the Saturday issue had been at a general

level, and because he thought it very improbable he would not have gone

to the mine if they had discussed the Moab Khotsong situation specifically.

[234] It is true that Mphahlele was tardy in dealing with Jacobs on Saturday 20

April, but previously he had been prompt in intervening directly at other

mines when the call for intervention was made by management and the

seriousness of the situation was made clear. If Jacobs had called for his

intervention in unambiguous terms and had warned him that an

unprotected strike was looming at Moab Khotsong and if Mphahlele had

agreed to investigate and revert, it does raise the question why Jacobs

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never followed up on Mphahlele’s alleged commitment before he called

him late on Friday evening. His subsequent conversations with Mphahlele

on 19 and 20 April also make no reference to Mphahlele’s apparent

inaction since the call on 16 April. Given the failure of Jacobs to make any

follow up despite Mphahlele’s supposedly inaction over the next couple of

days, it seems more likely that the call to Mphahleleon 16 April had not

dealt specifically with events unfolding at Moab Khotsong. It is true that it

seems reasonable to expect that Jacobs would have raised the alarm at

that time, but AGA’s general approach to the looming situation at Moab

Khotsong was oddly low-key in nature.

[235] From the narrative above it is very difficult to believe that the company

genuinely was unsure if strike action was likely at Moab Khotsong,

particularly given the interaction with AMCU local leadership in meetings

with management when the Saturday working issue was raised and the

increasing mobilisation by the leadership. It was reasonable to expect that

the company would have raised concerns with the national leadership

immediately after the threat made by the local leadership on 3 April

especially when it was coupled with an unashamed promise to disrupt

transport. Yet, in the whole period between 3 April and the strike on 19

and 20 April, not a single letter emphasising what the company’s stance

would be if such threats were persisted with was sent to AMCU head

office, even though that modus operandi had been usefully employed at

other mines which hitherto had a much more violent recent history.

[236] AGA rationalised the different approach at Moab Khotsong on the basis

that it was trying to engage the union to build a longer term and that there

was more time to allow the union to take the necessary steps to rectify the

situation. The main difficulty with this explanation is that it is apparent that

the focus of AGA’s interaction with AMCU senior leadership on Saturday

working arrangements was essentially to deal with the issue in the West

Wits region of the company, and that communications about imminent

strike action over Saturday working arrangements related to events at

Tautona and Mponeng mines. Even after there had been a meeting at the

Itireleng hostel on 11 April at which the issue of not working on Saturdays

was discussed, there was no attempt to directly communicate with AMCU

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head office on the situation at Moab Khotsong even though ultimatum’s

were issued in respect of Tautona and Mponeng. After the further warning

sign at the meeting on 15 April with the top seven when they refuse to

even talk about Saturday work when it must have been obvious that they

were escalating the campaign on the ground, the company embarked on

an intensive briefing program directed at the workforce, but there was no

further direct attempt to engage the local leadership of AMCU to put them

on terms, nor was national leadership of the AMCU advised of the

recalcitrant attitude of the top seven or of the briefing which had been

issued to the workforce. It seems remarkable that there was not a single

piece of correspondence directed by AGA to AMCU head office during that

week.

[237] In the circumstances, I accept that AGA made some effort to convey to the

workforce that a failure to work on Saturday work would be unacceptable

and could be construed as industrial action, the thrust of that

communication was not as unequivocal as a proper ultimatum would have

been. There was also no effort at the time it was communicating through

repetitive announcements with the workforce at the hostel to convey a

clear ultimatum to them during the course of the strike action. I also accept

that at least once the strike action commenced that AMCU national

leadership, as represented by Mphahlele, had sufficient information to

have recognised the need to intervene even if the consequences of failing

to bring the strike action to end were not spelt out. In this regard, I think it

is reasonable to acknowledge that while there is an obvious need for

unambiguous and explicit communication to striking workers about the

employer’s intentions, it is sufficient for the purposes of seeking the

union’s assistance that it be advised of the unfolding events and that its

urgent assistance in resolving the situation is required. The company’s

relative reticence in dealing with AMCU national leadership at Moab

Khotsong compared to the way it had handled the situation at Mponeng

and Tautona is discussed below.

Page 93

The opportunity to make representations

[238] In Modise & others v Steve's Spar Blackheath10 , the LAC held that:

“When the audi rule was introduced into our employment law in the private sector

through the justiciable unfair labour practice, the audi rule applied to all

dismissals, irrespective of the reason”11

The majority of the court also asserted clearly that this did not need to take

the form of convening individual disciplinary enquiries. Thus in rejecting an

argument advanced by an employer in another case that convening

disciplinary enquiries would have resulted in a substantial further delay in

bringing matters to a head and thus rendering the ultimatum largely

ineffective, the LAC held:

“I can see no delay that could have been caused if the employer had

given the strikes an opportunity to make written representations within a

certain number of hours, e.g. 24 or 48 hours, why they should not be

dismissed. That would have been compliance with the audi rule.”12

[239] It is important not to overstate the requirements of the opportunity an

employer must give strikers to make representations before deciding to

dismiss them. It is clear from the citation mentioned and from several other

references in the majority judgment in Modise that ordinary disciplinary

enquiries are not envisaged and there is no requirement that they need to

take an individual or collective form.

[240] In this instance, it is true that the Inquiries convened by AGA were of a

summary nature and were convened with no advanced warning. There

was also no attempt to engage with AMCU nor even to invite workers to

ask for representation. Van Heerden and explained that the company had

decided against a collective enquiry and collective appeals on the basis

that a more individualised treatment would give each worker a better

opportunity to present the specific explanation for their non-attendance.

While the approach was robust and brief, the fact that a number of

10 2001 (2) SA 406 (LAC); (2000) 21 ILJ 519 (LAC) 11 At 525, para [19] 12 At 541, para [65]

Page 94

charged individuals were found not guilty at the original enquiries does

demonstrate that a number of them were able to make use of the

opportunity to present justifications for their absence and that those

justifications were accepted, at least where the explanations did not relate

to the absence of transport. It cannot simply be ignored that 46 of those

charged were found not guilty as a result of the internal disciplinary

processes.

[241] Apart from the fact that the company made no arrangement for

representation of any sort, I do not think it can be said that workers were

not afforded any opportunity to be heard before they were dismissed,

albeit that the enquiries were convened in a drumhead fashion. The fact

that some of their representations were not seriously considered is an

issue which relates more to the substantive fairness of their dismissals.

[242] However, it must be said that the way the enquiries were convened hardly

gave the applicant’s an opportunity to consider how they might approach

the enquiries. It is true that the announcement was made by the DJ to the

workers who had been corralled at the buses that they were going to be

given an opportunity to explain why they were not at work, which is the

essence of the main defence to a charge of participating in an unprotected

strike given that a worker was not at work during the strike. However, they

were not given the pro forma charge sheet to mull over before they were

called to their individual enquiries. Further, there was no practical

opportunity to seek any advice, let alone obtain assistance in making

representations. Effectively, they were isolated from contact with the

union, until they had been dismissed. However, I am satisfied that these

limitations were cured or mitigated by the extended appeal process.

[243] As regards the appeal process, it does seem that communication of the

right to appeal was not well done. However, it was extended and AMCU

was a party to the extended appeal process. The attenuated right to

hearings in strike dismissals does not extend to a right to an appeal

hearing as a matter of course and in so far as it is offered, there is no

reason in principle why it has to be more elaborate than the dismissal

hearing in its execution.

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[244] In conclusion, even if a large number of the applicants’ dismissals were

not automatically unfair because they actually were absent from work

because they supported the strike, AGA’s approach in dismissing the

applicants for embarking on unprotected strike action, without issuing clear

and unambiguous ultimatums to workers to return to work or face the

prospect of dismissal, was procedurally unfair. The briefs issued before

the strike, though prudent, were too tentatively worded to serve as an

advance ultimatum and in any event did not justify the failure to issue any

ultimatums once the strike had commenced. Further, although they were

afforded an opportunity to make representations, they were unnecessarily

deprived of any reasonable opportunity to consider the representations

they should make or to obtain advice on how to make representations,

even if they were not entitled to union representation at the hearings.

Substantive unfairness

[245] Item 6(1) of the Code deals with the substantive fairness of dismissing

participants in an unprotected strike. It reads:

“Participation in a strike that does not comply with the provisions of

Chapter VI is misconduct. However, like any other act of misconduct, it

does not always deserve dismissal. The substantive fairness of

dismissal in these circumstances must be determined in the light of the

facts of the case, including –

(a) the seriousness of the contravention of this Act;

(b) attempts made to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct

by the employer.”

[246] In National Union of Metalworkers of South Africa (NUMSA) v CBI Electric

African Cables 13, the LAC explained that this was not a list of exhaustive

considerations in determining the fairness of a strike dismissal, viz:

13 [2014] 1 BLLR 31 (LAC).

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“[30] In his work Grogan expresses the view that item 6 of the Code is

not, and does not purport to be, exhaustive or rigid but merely identifies

in general terms some factors that should be taken into account in

evaluating the fairness of a strike dismissal. He, therefore, opines that in

determining substantive fairness regard should also be had to other

factors including the duration of the strike, the harm caused by the

strike, the legitimacy of the strikers’ demands, the timing of the strike,

the conduct of the strikers and the parity principle. I agree with this view

as the consideration of the further factors ensures that the enquiry that

is conducted to determine the fairness of the strike-related dismissal is

much broader and is not confined to the consideration of factors set out

in item 6 of the Code.”

(underlining added)

Criteria of substantive fairness set out in item 6 (1) of the code

[247] In this matter, there is no reason to believe that the attitude of the local

AMCU leadership at Moab Khotsong regarding the Saturday work

demands were any different from the views expressed by Motloi. Their

perspective was that they were not bound by agreements concluded by

other unions and were free to pursue their demands. Insofar as AMCU

national leadership had cautioned them against strike action, they were

indifferent to such advice just as they were indifferent to warnings from

Moab Khotsong management to respect the prevailing collective

agreements. It may be that they might have felt that it was an inherently

unfair to be bound by agreements concluded by unions they were no

longer members of, and that some allowance might be made for a limited

understanding of the binding effects of collective agreements in terms of

section 23 of the LRA, but they also made absolutely no attempt to follow

the appropriate dispute resolution mechanisms of the LRA.

[248] In fact, the refusal of the top 7 to engage with management on the

Saturday work issue or the impending strike action was probably indicative

of the fact that they were aware that they would be tackled on the

unlawfulness of the intended action. Quite apart from not invoking any

appropriate dispute resolution mechanisms, they were not even interested

in debating the issue with mine management. Clearly their expectation

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was that the strike action of members was likely to yield more fruitful

results than discussing the issue with management.

[249] In short there was no attempt whatsoever to comply with the LRA before

embarking on strike action and strike clearly contravened s 65(3)(a)(i) of

the Act which prohibits strikes where workers are bound by a collective

agreement regulating the issue in dispute. The issue of provocation by the

employer does not even arise in this instance nor was it argued.

Broader considerations affecting substantive fairness

[250] However, a consideration of the broader issues affecting the substantive

fairness of the applicants’ dismissals yields a different result.

[251] In the outline of the evidence, it is apparent that the intended impact of the

strike was virtually completely muffled by the cessation of productive

operations on the mine owing to the section 54. In truth, it was the effect of

section 54 notice which superseded the effect of any strike action. There

was no evidence to show that the strike even retarded the resumption of

operations when the notice was lifted. Obviously, had it been a normal

working Saturday the consequences of the strike would have been

markedly different. Even if consideration was given to the evidence of the

cleaning work that might have yielded some gold ore, no estimation of any

actual loss caused by the low attendance on the Saturday shifts was led.

In any event, for the reasons mentioned previously, it would not be proper

to take account of this evidence which was not properly canvassed with

the applicants’ witnesses.

[252] It was in the nature of the demand which lay at the heart of the strike that it

was confined to the Saturday shifts. Consequently, quite apart from the

fact that its impact was severely blunted by the section 54 notice, it was of

relatively short duration. The question of the timing of the strike will usually

be a more important consideration when the strike starts with little or no

warning, or is timed to create the maximum impact. On this occasion, for

the reasons discussed already, it could hardly have come as a surprise.

Fortuitously, its timing coincided with a shutdown of productive operations,

which significantly lessened its seriousness.

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[253] To some extent the legitimacy of the demands have already been alluded

to in discussion of the criteria under item 6 (1) above. It is so that there

might have been a perception that where AMCU had achieved a majority

unions status it ought not to be bound by agreements concluded by

previous majority unions. But then the appropriate remedy was to demand

that the mine should give notice to terminate those agreements. Also, the

fact that AMCU members might have believed that they ought to

legitimately be able to renegotiate the terms of Saturday work did not

mean that expedience could then dictate how this legitimate aim was to be

achieved.

[254] As far as the conduct of the strikers is concerned, AGA dealt decisively

with those identified as instigators or alleged perpetrators of violence. AGA

did not pursue charges of strike related misconduct against the rest of the

applicants, nor was there any evidence led to suggest that their conduct

as strikers was aggravated by other actions they committed.

[255] In this matter, the most important criteria affecting the fairness of the

dismissals concerns whether or not AGA acted consistently in meting out

the sanction of dismissal to them and whether dismissal was an

appropriate sanction in any event. The applicants claim that the company

acted inconsistently in the following respects which are dealt with below.

[256] The first claim relates to the underground sit ins at Mponeng and Tautona

mines in November and December 2012. In neither of those two instances

did AGA take disciplinary action against the workers who participated in

them. In both these actions ordinary mining operations were interrupted for

at least a full day. At Mponeng this had resulted in considerable losses. In

both cases, although there had been an agreement reached that workers

would be issued with final written warnings for their participation in the

general strike of 2012, those warnings had not yet been issued at the time

of the two sit ins. In any event, in neither of these actions was any

disciplinary sanction imposed on workers for their participation in the sit

ins. The rationale advanced by Jacobs for not taking action against

workers participating in the sit in at Mponeng mine was that it was not in

the interests of the long-term relationship AGA wanted to establish was

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AMCU and it could not contemplate dismissing 2000 workers. At TauTona

one of the justifications advanced was that the company was unable to

identify who had participated in the sit in. However, Naidoo agreed that it

was possible to identify which of the workers were AMCU members at that

stage. Moreover as Nangu pointed out nothing prevented the company

from charging everyone and giving them an opportunity to explain why

they were not part of the sit in. It was also argued that in effect the

situation at Tautona was more akin to a hostage situation because certain

staff were being held underground against their will. It certainly appears

that this and other criminal conduct was a feature of that action.

Nevertheless that does not detract from the fact that it was also an

unprotected strike. In this instance too, Jacobs testified that part of the

decision not to take any disciplinary action against them was because of

the tension and climate at the mine at the time and management’s desire

not to add fuel to the fire.

[257] What emerges from the above is that the decision not to take disciplinary

action of any kind in those two instances was informed less by

considerations of principle than of pragmatism and expedience. Leaving

aside the fact that those employees have not formally been issued with the

written warnings for the general strike, unlike the vast majority of

applicants at Moab Khotsong, the disparity between the severity of the two

sit-ins and the strike in this instance compared with the disparity in the

sanctions meted is very difficult to reconcile. Jacobs tried to explain this on

the basis that agreements were reached with the union in both those

cases after the union made representations and because of the fact that in

this matter most of the applicants were on a final written warnings.

[258] It seems to me that the mere fact that the union made representations in

those two instances, in and of itself, is not a substantial consideration of

principle that would explain dismissal in this instance and the absence of

any disciplinary action in the other cases. It is true that there is still the

matter of the final written warnings, which in this case had not only been

agreed upon but had been issued. Nonetheless, given the relative

insignificance of the severity of the strike in this matter, it is very difficult to

understand, as a matter of principle, why AGA regarded the strike as

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warranting dismissal based principally on the final written warnings, but

was willing to effectively turn a disciplinary blind eye to far more serious

industrial action at the other mines. In my view, the reasons advanced by

Jacobs did not justify the disparity of treatment.

[259] The second claim relates to the fact that no disciplinary action was taken

against those workers who had struck in support of the Saturday work

demands at Mponeng mine. In this case, comparisons are less easy to

make because the strike was called off as a result of the timeous

intervention of the AMCU head office and the cooperation of local AMCU

leadership. It is true that there was a shortfall in attendance, but there was

also an agreement to work in the shift and there were safety

considerations that were taken into account because some workers were

intoxicated by the time they would have been on duty.

[260] Thirdly, the applicants’ claim that the way in which the mine approached

the strike at Moab Khotsong differed markedly from the way it had handled

matters at the other mines. Thus they argue that no attempt was made to

put the union on terms or two obtained an interdict prior to the anticipated

strike. They submit that it is improbable that AGA genuinely believed that it

was uncertain if the strike was imminent and therefore this could not have

been a reason for not launching an interdict or putting the union on terms.

I agree that it is difficult to understand how that could have been the case

especially given the briefings issued by Madondo and discussions held

with security personnel earlier in the week about ensuring the security of

persons wanting to go to work. It is true that Jacobs also claimed that the

company had decided to approach the situation differently at Moab

Khotsong, but given the chain of events as they unfolded after 3 April it is

very difficult to understand why the company was not more assertive in

putting the union on terms, coupled if necessary with an urgent interdict,

as it had done at the other mines, with evident success.

[261] However, even if I am incorrect in finding that there was a degree of

unjustifiable inconsistency of treatment in the sanction imposed in this

instance and the lack of a sanction imposed in the case of the two sit in

strikes, this nonetheless has a bearing on the final consideration of

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substantive fairness which is whether the sanction of dismissal was an

appropriate one in the circumstances.

[262] Jacobs had defended the imposition of the sanction of dismissal on the

basis that most of the applicants were on final warnings and were aware of

them. Moreover, the company had taken “quite lengthy steps” to try and

approach the action and that brought the potential consequences of

embarking on it to the attention of national and local leadership. Further,

there was no remorse shown by the leadership or the dismissed

employees. Given that the workers had followed the leadership of the top

seven which were “almost a law unto themselves at the time” they did not

believe the relationship with those employees could be salvaged. The

company was clearly of the impression that the local leadership was at

odds with national leadership on the Saturday work issue, but the union

had failed to take a lead in this instance as it had done at Mponeng to

unlock the situation.

[263] In considering the appropriateness of the sanction, the following factors

are important in my view:

263.1 the mine was not in production mode when the strike occurred;

263.2 the strike was of the short duration;

263.3 the duties which strikers did not perform during the operation of

the section 54 notice were a relatively insignificant;

263.4 the start-up of the mine was not shown to have been delayed by

the strike action once the section 54 notice was uplifted;

263.5 a large number of other employees who could just as easily have

found alternative transport to the mine on the employer’s version

were completely excused from failing to report for duty;

263.6 the applicants were not dismissed on account of the actions of the

instigators or the top seven.

263.7 the fact that there was no unambiguous warning to the strikers of

the potential consequences of proceeding with their strike action,

particularly those on final written warnings, even though this could

have been communicated to them at the outset, and

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263.8 the fact that the employer had failed to take any disciplinary action

whatsoever against participants in the far more severe strike action in

the sit-ins at Tautona and Mponeng;

[264] in the light of those factors I am satisfied that the applicants dismissals

were in any event substantively unfair.

[265] A distinct group of applicants require separate consideration. Fourteen

applicants ought to have received final written warnings as they did

participate in the 2012 strike, but because their absence was incorrectly

coded, the warnings were not issued. There was no dispute the warnings

should have been issued and there is no evidence that their knowledge of

the warnings not being issued influenced their conduct. I believe that they

ought to have been treated like all the other applicants who had final

written warnings and their dismissal would be unfair for the same reasons.

Relief

[266] In the result, my findings on the question of the fairness of the dismissals

set out above are that the dismissal of all the applicants was substantively

and procedurally unfair for participating in an unprotected strike

irrespective of whether or not many of their dismissals were also

automatically unfair for the reasons mentioned. This finding does not

apply to the three applicants who were dismissed for different reasons

whose names appear at paragraph 9 of Annexure B hereto.

[267] A difficulty which presents itself with granting relief for automatically unfair

dismissal to those applicants who claimed that they could not get to the

shaft because of transport is that of all the specific reasons advanced for

not attending, this was the common reason given by all those who

advanced specific defences except for 26 applicants who did not. Based

on the analysis above which indicates that the non-attendance by AMCU

members was markedly higher than non-AMCU members, it is apparent

that a significant number of those who claimed there was no transport

were more likely to have been absent because they were supporting the

strike. Consequently, it would not be fair in my view to assume that all the

applicants would be entitled to relief for automatically unfair dismissal and

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it is impossible to identify those who were not simply staying away

because they were striking. However, because I am satisfied that their

dismissals were in any event substantively and procedurally unfair, they

can obtain relief on that basis.

[268] It is trite that, in the case of a substantively unfair dismissal, reinstatement

or re-employment is mandatory in terms of section 191 (2) of the LRA

unless the circumstances surrounding the dismissal were such that a

continued employment relationship would be intolerable or it could not be

reasonably practicable for the employer to reinstate the employee.

[269] Although Jacobs did testify that he regarded the employment relationship

between AGA and the applicants as destroyed, given the circumstances in

which it was willing to continue to employ workers at Tautona and

Mponeng and in the absence of evidence of the conduct of particular

individuals that would make their presence at the workplace intolerable, no

good reasons have been advanced why reinstatement would be

intolerable.

[270] Jacobs also dismissed the possibility of re-establishing an employment

relationship with the dismissed workers given that the company was

currently in a restructuring mode and had shed 2000 jobs since 2012 in

the low gold price environment. Obviously, it is a realistic possibility that

the employer might have to undergo a restructuring exercise after

reabsorbing such a large number of reinstated employees. However, that

is always a potential consequence of reinstatement’s following mass

dismissals sometime after the event and we are not dealing in this

instance a situation of having to accommodate persons with particular

skills in a workplace which no longer utilises those skills. The mere fact the

reinstatement will cause inconvenience ought not to be a bar to

reinstatement.14

[271] If reinstatement is appropriate, the next question which arises is whether

the applicants should be reinstated to the date of their dismissals or for

some shorter period.

14 Equity Aviation Services (Pty) Ltd v CCMA & others [2010] JOL 26456 (LC) at par [36]/

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[272] Bearing in mind that the mass of the applicants had embarked on

unwarranted unprotected strike action, and taking into account the time

since they were dismissed I believe retrospective reinstatement for a

period of twelve months without loss of service is appropriate relief.

[273] As far as the determination of backpay is concerned for the specific

categories of applicant in respect of whom offers of reinstatement were

made during the proceedings, I believe the following periods of

reinstatement are just and equitable bearing in mind the relief awarded to

others above:

273.1 In respect of the 14 applicants who erroneously had not had final

written warnings recorded against them for the 2012 general strike,

they should also be reinstated with retrospective effect for twelve

months.

273.2 Since the reason I have found the dismissals were substantively

unfair does not depend fundamentally on whether or not applicants

had final written warnings, I believe it is appropriate that those

applicants who did not have final written warnings issued to them in

respect of the 2012 strike, because they were not eligible to receive

ones, should be treated on the same basis as the main body of the

applicants and be reinstated for a period of 12 months.

273.3 In respect of the ten applicants who were found not guilty at their

enquiries or appeal hearings but did not return to work, I believe the

company’s tender of retrospective reinstatement for a period of six

months is fair and appropriate.

273.4 Similarly, the four applicants who did not appear to have attended

disciplinary or appeal hearings should be entitled to the same relief

as those who did not report for work.

273.5 It must also be mentioned that in respect of the top seven and the

seventeen instigators who were dismissed for additional reasons

unrelated to their participation in the strike, it is simply necessary to

record that their dismissals for striking per se were not substantively

fair, but no relief is award in respect of those individuals.

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Costs

[274] The parties do have an ongoing relationship but the applicants have been

substantially successful in many respects and a number of the individual

claims should have been resolved without the necessity of coming to trial.

In the circumstances, I believe they ought to receive at least half their

costs.

Order

[275] Accordingly, the following order is made:

[276] Having found that the dismissals of all the applicants for participating in an

unprotected strike other than those mentioned below was substantively

and procedurally unfair, the respondent must reinstate these applicants

with twelve months’ retrospective effect within four weeks of the date of

this judgment on tender of their services, excluding the nine applicants

whose names appear on Annexure “A” hereto, who have withdrawn from

the matter.

[277] The ten applicants whose details are set out in paragraph 3.1 of Annexure

B hereto are reinstated with six months’ retrospective effect. To the extent

that any of these applicants have not yet been reinstated the respondent

must do so within four weeks of this judgment on tender of their services.

[278] The four applicants whose details are set out in paragraph 3.2 of

Annexure B hereto are reinstated with six months’ retrospective effect. To

the extent that any of these applicants have not yet been reinstated the

respondent must do so within four weeks of this judgment on tender of

their services.

[279] The fourteen applicants whose details are set out in Annexure D hereto

are reinstated with twelve months’ retrospective effect. To the extent that

any of these applicants have not yet been reinstated the respondent must

do so within four weeks of this judgment on tender of their services.

[280] The twenty two applicants whose details are set out in Annexure E hereto

are reinstated with twelve months’ retrospective effect. To the extent that

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any of these applicants have not yet been reinstated the respondent must

do so within four weeks of this judgment on tender of their services.

[281] The deceased applicants whose names appear at paragraph 8 of

Annexure B hereto are entitled to compensation of twelve months’

remuneration in lieu of reinstatement, which must be paid by the

respondent to their deceased estates on receipt of proof of the

appointment of an executor and the relevant details of the trust account of

the deceased estate.

[282] Payment of any backpay due in terms of the above order must be made

within two weeks’ of the applicant’s return to work or, in the event an

applicant is already reinstated at the date of this judgement within two

weeks of the judgment.

[283] The respondent must pay half the applicants’ costs including the costs of

two counsel.

_______________________

R LAGRANGE, J

Judge of the Labour Court of South Africa

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APPEARANCES

APPLICANTS: F Boda assisted by S Collet instructed by Larry

Dave Attorneys

RESPONDENT: A Myburgh, SC assisted by M Lennox instructed

by Fasken Martineu

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