CASE LAW UPDATE

Facts: The applicant conducts mining activities and a smelter in the Rustenburg and surrounding areas. The applicant employs approximately 1,962 people. As a benefit to its employees, the applicant has sought to procure accommodation for them over the past 20 years. Employees who qualify for the housing benefit apply to the applicant for allocation of housing which, if available, are allocated to the employees. Such employees pay a nominal rental fee to the applicant, as well as the water and electricity consumed. Due to the turn-over of personnel at the applicant, it happens that some properties remain vacant for a period. The properties in question were vacant and became occupied by the 19 respondents.

Application: The applicant seeks an order in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) evicting the 19 respondents from the properties. The applicant alleges, and the respondents deny, that the properties were safeguarded to prevent illegal occupants and vandalism. The applicant further alleges that the properties were locked, and security were employed to prevent unlawful occupation. The respondents state that the derelict state of the properties resulted in them becoming drug-nests and that the occupation of the properties by the respondents prevented the illegal activities.

Discussion: The respondents state that they used their own financial means to renovate the properties to a habitable state. The respondents and their families cleaned up the properties, did electrical work, plugs, installed geysers, fixed the ceiling, replaced doors, painted the buildings and did plumbing works to bring the properties up to habitable standards. The respondents describe themselves as households that are headed by women, that include children, a household where a disabled person lives, and households that take care of the elderly. The PIE Act mandates that the court must consider the social and economic circumstances of such vulnerable groups.

Findings: “Just and equitable” encompass consideration of not only the respondents’ positions, but also that of the applicant’s. The applicant is currently losing the financial benefit it would have received, had its employees occupied the properties. In addition, the applicant is also losing the benefit of accommodating its employees in houses. Unfortunately, there is always a cost associated with anything of value. In this instance, it is the price of housing. Fairness would not dictate that one party has all the benefits at the expense of the other. The occupiers have had the benefit of free housing and free water and electricity since December 2021. The fact that the occupiers cleaned up the properties and restored them to habitable properties, might form the basis of a claim of enrichment against the owner. It does not provide any right to occupation of the property. A period of three months would be a sufficient time for the respondents to make alternative arrangements.

Order: The respondents are evicted from the properties. Certain of the respondents are ordered to pay the costs of the application on Scale C on a party and party scale. The others are excluded from any costs order.

REID J

Facts: The applicant and the respondent were married out of community of property, with the inclusion of the accrual system and are now involved in divorce proceedings. Both were previously married and had two children each from those marriages. No children were born of their marriage. The applicant’s children were still minors, while the respondent had a minor and an adult child. When they met and married all the children were minors. The applicant’s children lived primarily with the parties, and the primary care of the respondent’s children was with their mother, but the children regularly spent time in the parties’ matrimonial home as the respondent had contact rights. They in whole formed a blended family. The applicant’s case was that her children had become accustomed to a high standard of living over the last eight years of the marriage. The children were severely prejudiced by the actions of the respondent and his sudden withdrawal, emotionally and financially from their lives, which was not done on bona fides. The respondent’s position was that he did not have parental rights and responsibilities in respect of the applicant’s children, that he did not have a legal duty to maintain them, nor did he undertake or promise to maintain them.

Application: A Rule 43 application wherein the applicant sought spousal and children’s maintenance pendente lite, a contribution to legal costs, return and delivery of furniture and household goods and a payment in respect of electronic household appliances. The applicant’s case was that her children were devoted to the respondent, formed a strong bond with him, and his withdrawal from their lives had caused undue trauma. The respondent’s claim that he had no legal obligation towards the applicant’s children would be shocking behaviour towards the children.

Discussion: The respondent never withheld any financial support from the applicant and her children and regularly spoilt them with only the best. They went on luxury holidays, including overseas holidays, lived in a beautiful large house valued at a minimum of R10 million, drove luxury cars and the children attended private schools. The applicant’s proposition was that the respondent had no right to unilaterally withdraw from that role, or put otherwise, the respondent had no right to terminate a relationship in which he had placed himself as a parent. In matters involving children, the politics of the birth of the child yields to what is in their best interests. It is not in the best interests of children that a step-parent be permitted to abruptly abandon those children the moment they fall out of love with their parent. On the facts, the parties formed a new family. The respondent provided financial support and presented to the children, the family, including the extended family members, and the world that he was responsible as a parent of the children. The children moved to private school and were spoilt with luxury, including expensive birthday and Christmas gifts. The respondent admitted that he had a financial structure as set out by the applicant, which resorted under two trusts.

Findings: The respondent said one thing in public and did the exact opposite in private. His denial of applicant’s access to household appliances and necessary furniture is a demonstration of how low the respondent could stoop to hurt another and deny them a sustainable livelihood. If the mediation did not expect of him to disclose, the applicant would not have known about the financial structure and web of trusts and companies he built to manage his assets and estate. The enlistment and removal of the applicant as a director in one of the entities without her knowledge further guarantees the secrecy and selective disclosure that she is worried about. The applicant fears that unless there is a proper forensic investigation, she will never know the full extent of the estate to which she is entitled. Nothing is found on the applicant’s expenses which sounds to be more than to maintain the lifestyle commensurate with what she and the children were accustomed to. The court is not persuaded that the respondent did not have the means. The contribution for costs asked for would enable the applicant, who is comparatively financially disadvantaged in relation to the respondent, to adequately place her case before the court.

Order: The respondent is to make payment of R40,000 to the applicant monthly and a contribution towards the applicant’s legal costs in the amount of R1,000,000; and he is to return and deliver to the applicant her furniture and household goods; and pay the applicant the amount of R102,597 in respect of electronic appliances.

THULARE J

Issue: The crux of this case is the proper interpretation of section 189A(7)(b)(ii) of the Labour Relations Act 66 of 1995 which regulates a referral to the Labour Court of an unfair dismissal dispute after facilitated consultations in large-scale retrenchments have been concluded. The subsection provides that a registered trade union or the employees who have received notice of termination may refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191(11). The appellant in this case did not refer the matter to conciliation before referring it to the Labour Court.

The court a quo: The court held that a party to a facilitated retrenchment engagement about the alleged substantive unfairness of the retrenchment must refer that dispute to conciliation before a valid referral can take place to the Labour Court to adjudicate a dispute alleging an unfair dismissal. The appellant, NUMSA, contends that the step of referring a dispute to conciliation, once the facilitation exercise is over, is not required as a precursor to a referral to the Labour Court. The respondent employer, SAA Technical SOC Ltd, contends that a referral to conciliation is mandatory.

Discussion: On a plain reading, upon the ending of the facilitated process, a party is required to proceed further as prescribed by section 191(11) which, in turn, implicates section 191(5)(b). The result of these interlocking provisions is that a referral to the Labour Court may be made if the referring party is armed with a certificate of non-resolution of conciliation or the 30 days since referral to conciliation has elapsed. Or is that truly what the provisions provide? The obvious first thought to strike the reader is why bother with a conciliation process if the parties have already engaged in a facilitated engagement. Bluntly, what possibly could there be left over to talk about? This notion has attracted little judicial attention.

Findings: As held in the judgment a quo, there is a functional distinction between facilitation and conciliation. This normative perspective is critical. As argued on behalf of the respondent, there is a shift from an arena in which there has been a contestation about interests to an arena where there is a contestation about rights. It does not automatically follow that the issues canvassed in the retrenchment consultations remain static and do not morph into distinctive other issues that are then sought to be brought before the Labour Court. Ultimately what is revealed by the exercise of stripping down the text and examining it in the light of the experience of retrenchment disputes is that the two rival positions are informed by policy choices. The court is to determine which policy the statute, read as a whole and in the context of the dynamics of collective bargaining and labour litigation, has been stipulated. The proper interpretation of section 189A(7)(b)(ii) is that notwithstanding the facilitation process, a referral to conciliation is mandatory.

* See the case law discussion at paras [12]-[22].

Order: The appeal is dismissed with no order as to costs.

SUTHERLAND AJA (Molahlehi AJP and Musi AJA concurring)

Facts: Prior to these proceedings, the court issued an order directing the applicant (Africabin Building Systems) to furnish security in terms of section 145(7) and (8) of the Labour Relations Act 66 of 1995. The company launched proceedings to review and set aside the award. That review application is pending. The company did not furnish security. The result of its failure to furnish security in terms of section 145(7) and (8) (security provisions) is that the review application did not suspend the operation of the award. Empowered by these security provisions, the employee sought to execute the award. However, her basis for execution of the award was that the review application was deemed to have been withdrawn.

Application: After filing the review application, the company conscientiously elected not to comply with these security provisions. It was only when the employee sought execution of the award that the company launched these urgent proceedings and sought exemption from furnishing security. The company sought to be exempted from furnishing security, alternatively that it furnishes security in the amount determined by the court to be reasonable.

Discussion: The company’s contention that the amount of security is an equivalent of the employee’s 24 months’ remuneration plus backpay in the amount of R272,000 is misplaced. In terms of section 145(8), the company was only required to put up R816,000, which is the equivalent of the employee’s 24 months’ remuneration. Therefore, the company has exaggerated the amount. The company confirmed that it is profitable and that it would be in a position to pay the amount awarded in the event of an unsuccessful review application. The upshot of the company’s submission is that employers with sufficient or adequate assets should be exonerated from furnishing security. Adequate or sufficient assets of multi-million rands will not automatically absolve employers from compliance with the security provisions, nor will it automatically mean that the court should grant the exemption. Employers cannot be exonerated from the provisions of the law simply because they allege that they would be able to comply with the award should their review application fail.

Findings: Where the award orders the employer to reinstate the employee, and the employer decides to challenge the award by way of review proceedings, the employer must comply with the provisions by furnishing security in terms of section 145(8). Absent security, the employee is entitled to execute the award. The company did not prove any prejudice. Its case is one of an employer who simply prefers not to furnish security because it believes that it has adequate assets. Further, the company prefers to make upfront payment of its stock from service providers, without providing details why this is important or is a requirement in its industry. It said nothing about the cash available in its bank accounts and nothing about why and how furnishing security of R816,000 would hamper its operations. The company failed to show good cause why it should be exempted from furnishing security. It failed to explain with particularity how payment of any portion of the amount would be unduly onerous and harmful to its business or operations.

Order: Fairness and equity to both parties require payment of 50% of the equivalent of 24 months’ remuneration. It is ordered that security equivalent to 12 months’ remuneration (R408,000) be furnished.

MAKHURA J