THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE NO: 507/04

In the matter between :

NATIONAL UNION OF MINEWORKERS
First Appellant
MOTLHOKI & OTHERS
Second and Further Appellants

- and -

MAZISTA TILES (PTY) LTD
Respondent
________________________________________________________________________
Before:
MPATI DP, NUGENT, MLAMBO JJA, NKABINDE & MAYA
AJJA
Heard:
4 NOVEMBER 2005
Delivered:
23 NOVEMBER 2005
Summary:
Appeal from the Labour Appeal Court – appeal noted before
requirement of leave to appeal introduced – whether such leave
required – whether leave to appeal to be granted.
________________________________________________________________________

J U D G M E N T
________________________________________________________________________

NUGENT JA

NUGENT JA:
[1] After Chevron Engineering (Pty) Ltd v Nkambule1 was decided by this
court but before the decision in National Union of Metalworkers of SA v Fry’s
Metals (Pty) Ltd,2 the appellants, who I will refer to collectively as the union,
noted the present appeal against a decision of the Labour Appeal Court (Jafta
AJA, Zondo JP and Mogoeng JA concurring). The judgment of that court is
reported,3 and it would be superfluous to repeat its careful and comprehensive
exposition of the material facts and issues.
[2] Leave has not been granted for the present appeal – a prerequisite for an
appeal to this court that was laid down in Fry’s Metals – nor was it sought by
the union before the matter was called. That raises the question whether the
appeal is properly before us. The submission on behalf of the union was that
leave to appeal is not required. It was submitted that the effect of the decision in
Chevron was that an unqualified right vested in the union to prosecute its appeal
at the time the appeal was noted, which could not be truncated by the
requirement for leave to appeal that was introduced by Fry’s Metals. The
respondent’s counsel made submissions to the contrary and asked for the appeal
to be struck from the roll.
[3] In Pharmaceutical Society of South Africa v Tshabalala-Msimang NO;
New Clicks South Africa (Pty) Ltd v Minister of Health4 it was pointed out by

1 2003 (5) SA 206 (SCA).
2 2005 (5) SA 433 (SCA).
3 [2005] 3 BLLR 219 (LAC).
4 2005 (3) SA 238 (SCA).

this court,5 and later confirmed by the Constitutional Court,6 that where leave to
appeal is required the critical time at which it must exist is when judgment is
delivered in the appeal. It follows that if we were to find that leave to appeal is
required it would still be open to the union to apply for such leave (subject,
perhaps, to condonation being required), and if it were to be granted, to once
again bring this matter before us, though at additional cost and inconvenience
for all. To avoid that undesirable state of affairs, and by agreement between both
counsel, we permitted the union to apply orally from the bar for leave to appeal,
conditioned upon a finding that such leave is required. In the result we are called
upon to decide, first, whether leave to appeal is required, and secondly, if it is
required, whether it should be granted, before we turn to the merits of the
appeal. I should add that we heard full argument on the merits of the appeal in
case we should find in favour of the union on the preliminary issues.
[4] In Chevron this court held that it has jurisdiction (conferred upon it
constitutionally) to entertain an appeal from the Labour Appeal Court. That was
endorsed by its later decision in Fry’s Metals. (In Chevron the matter
commenced in the former Industrial Court while in Fry’s Metals it commenced
in the Labour Court but that distinction was not material to the decision in each
case and is not material for present purposes.) But in Chevron the court did not
consider the further question when, and in what circumstances, this court will
exercise that jurisdiction, a question that was considered in Fry’s Metals. And in

5 Para 28.
6 Minister of Health v New Clicks South Africa (Pty) Ltd, Case No. CCT 59/04, paras 61 and 62

the latter case it was decided that this court will exercise its jurisdiction only
where the proposed appeal has reasonable prospects of success and where there
are also special considerations that warrant a further appeal to this court
notwithstanding that there has already been an appeal to a specialist tribunal.7 It
was to ensure that cases without those characteristics were not placed on its roll
that the procedural requirement of leave to appeal was introduced in the exercise
of this court’s powers to regulate its own procedures.
[5] At the time the union noted its appeal Chevron had decided only that this
court has jurisdiction to entertain the proposed appeal. That decision did not
entail that the union had a right to insist that this court exercise that jurisdiction.
It has since been held that this court will exercise its jurisdiction only in the
circumstances that I have described, which applies whenever this court is called
upon to exercise that jurisdiction, including in the case that is now before us.
The union had no vested right that has been truncated by that decision, nor by
the procedural requisite that was introduced in Fry’s Metals, and its first
submission must fail. But the fact that the procedural requisite was introduced
only after the present appeal was lodged, and that its effect might be said to have
been uncertain, provides good grounds for condoning the union’s non-adherence
to form and receiving its application for leave to appeal orally from the bar. The
second question, then, is whether leave to appeal ought to be granted.
[6] The present case raises issues that are similar in material respects to those
that arose in Fry’s Metals. Only a brief synopsis is required. The respondent

7 Para 42.

wished to restructure its affairs in order that its business should remain
competitive. Various courses that it considered adopting from time to time all
affected its workforce in one way or another and had the potential to result in
retrenchments. The respondent initiated consultation with the union to consider
its proposals and the reasons why it was considering adopting them. For a year
and more the respondent attempted to find consensus with the union in relation
to one or other of its proposals but to no avail. On the contrary, the union failed
altogether to come to grips with the difficulties that were advanced by the
respondent, offered no alternative solutions of its own, and in the end merely
insisted that things should remain unchanged. Ultimately the respondent decided
to proceed unilaterally and it dismissed about 300 workers in order to do so. The
union, on behalf of the workers, challenged the validity of the dismissals in the
Labour Court, alleging that the dismissals were automatically unfair as
envisaged by s 187(1)(c) of the Labour Relations Act 66 of 1995, and in the
alternative, that the respondent had not shown that the dismissals were for a fair
reason and in accordance with a fair procedure as contemplated by s 188(1).
[7] The Labour Court held that the dismissals were automatically unfair as
envisaged by s 187(1), and also that they had not been shown to have been
effected for a fair reason and in accordance with a fair procedure, and it ordered
the reinstatement of the workers. On appeal both those findings were reversed
and the Labour Court’s orders were set aside.

[8] When the matter came before the Labour Appeal Court it had already
given its decision in Fry’s Metals,8 which similarly concerned dismissals that
were alleged to be automatically unfair. In that case the court was called upon to
construe the meaning of s 187(1)(c). It held that the section is confined to
conditional dismissals and does not extend to dismissals that are irreversible. In
the words of Zondo JP a dismissal falls within the terms of the section only
where
‘…the dismissal is effected in order to compel the employees to agree to the employer’s
demand which would result in the dismissal being withdrawn and the employees being
retained if they accept the demand … [and not where] it is effected finally so that, in a case
such as this one, the employer may replace the employees permanently with employees who
are prepared to work under the terms and conditions to meet the employer’s requirements.’
That construction of the section was subsequently endorsed by this court after
hearing comprehensive argument.9
[9] Applying that construction of the section the Labour Appeal Court found
in the case that is now before us that the present dismissals were indeed effected
unconditionally and irreversibly and were thus not struck by s 187(1)(c).
[10] On the second issue that arose before it (whether the dismissals were
effected for a fair reason and in accordance with a fair procedure) it found that
the reason for the dismissals was a fair reason based on the respondent’s
operational requirements (as contemplated by s 188(1)(a)(ii)) and were effected
in accordance with a fair procedure (as contemplated by s 188(1)(a)(ii)) in that

8 Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA (2003) 24 ILJ 133 (LAC); [2003] 2 BLLR 140
(LAC).
9 2005 (5) SA 433 (SCA) paras 55-60.

the dismissals were preceded by consultation in which the union was given
adequate opportunity to furnish the respondent with counter-proposals in order
to avoid retrenchment.10
[11] Both those findings, it was submitted on behalf of the union, raise
questions of considerable importance, not only to the parties in the present
dispute, but also to the labour relations community in general. It was submitted
that the decisions that are made in concrete cases, and particularly in the case
that is before us, has the effect of developing and refining the law for application
in future cases, and that it is in the interests of the wider community that this
court should pronounce authoritatively on those developments. We were
referred in particular to what was said to be ongoing debate in the Labour
Appeal Court concerning the approach to be adopted when determining in what
circumstances the operational requirements of an employer will constitute a ‘fair
reason’ for dismissal.11
[12] While it is true that the application of law to fact in particular cases has
the inevitable effect that an evolving jurisprudence is developed that is not a
reason in itself why this court should intervene to direct that evolutionary
process. Most often that jurisprudential evolution will involve matters of nuance
and refinement, which the Labour Appeal Court is both well-placed and
statutorily charged to decide. The legislature has entrusted the development of
doctrine and the responsibility for statutory interpretation in the field of labour

10 Para 70.
11 The nature of that debate is explored in a useful article by Darcy du Toit ‘Business Restructuring and
Operational Requirements Dismissals: Algorax and Beyond’ (2005) ILJ 595 in which the more important cases
are collected.

relations primarily to the Labour Appeal Court and I do not think this court
ought to supplant it at every step. Even where a decision of the Labour Appeal
Court involves matters of principle and doctrine that are open to debate this
court ought not necessarily to intervene. Fry's Metals made it clear that the mere
fact that there is a prospect, even a reasonable prospect, that this court might
reverse a Labour Appeal Court ruling is not enough to justify the grant of special
leave. There will need to be special considerations relating to important issues of
constitutional or legislative construction or important questions of principle
before this court will consider intervening. Still less will special leave to appeal
be granted where the decision involves the construction to be placed on fact or
the application of doctrine to matters of fact.
[13] In my view the findings of the Labour Appeal Court in the present case
did not entail decisions on significant points of law or principle. On the question
whether the dismissals were automatically unfair the principle question of law
was settled in Fry’s Metals. What remains for decision in particular cases, as it
was in the case before us, is only whether a dismissal was conditional or
irreversible. That is an essentially fact-bound enquiry, albeit that it might at
times require nuances of meaning to be considered, which does not ordinarily
warrant a further appeal to this court. And generally the question whether the
reason for dismissal was ‘a fair reason’ based on the operational requirements of
the employer, and effected in accordance with a fair procedure, will similarly
entail essentially fact-bound value-judgments (albeit that they might be

constitutionally based).12 Those enquiries, as they were conducted in the present
case, do not seem to me to have given rise to broad questions of policy or
principle constituting special considerations that warrant a further appeal to this
court and on those grounds alone I would dismiss the application for leave to
appeal. I might only add that I also see no reason to disagree with the
conclusions that were reached by the court below and I would have dismissed
the application on those grounds as well.
[14] The application for leave to appeal is dismissed, and the appeal is struck
from the roll, with costs in both cases, including the costs of two counsel.

____________________
R.W. NUGENT
JUDGE OF APPEAL

MPATI DP)
MLAMBO JA)
NKABINDE AJA)

CONCUR
MAYA AJA)

12 See Froneman DJP in SA Chemical Workers’ Union v Afrox Ltd (1999) 20 ILJ 1718 (LAC).