Sibanye-stillwater’s feeble attack warned off a second time!
8 February 2019
Today, the Labour Court once again dismissed the urgent application by Sibanye-Stillwater to declare the industrial action of the Association of Mineworkers and Construction Union (AMCU) unprotected. This was a second attempt at the same approach the mine attempted in December last year, and which was also dismissed. The Court accepted AMCU’s arguments that the application was already dismissed, and that could it could therefore not be entertained again. AMCU’s strike is a protected strike and the AMCU members’ constitutional right to strike, remains protected. Judge Connie Prinsloo also awarded costs to AMCU.
Similar to the action in December last year, the application by Sibanye-Stillwater was based on an argument that the three other unions at its operations, namely the National Union of Mineworkers (NUM), Solidarity and UASA, together form a majority. In terms of section 23(1)(d) of the Labour Relations Act (LRA), an employer has the right to agree with a majority union or a group of unions forming a majority, to extend a collective agreement to minority unions.
In a textbook case of David against Goliath, AMCU again had to defend itself against two major law firms assisted by Advocate Anton Myburgh SC. Acting for AMCU, Advocate Craig Watt-Pringle SC raised two preliminary points, one of which was related to the legal term res judicata – Latin for “matter already judged”. He argued that the 21 December 2018 ruling of Judge Thlothlalemaje that the application was dismissed, meant that Sibanye-Stillwater could not approach the Labour Court with the same matter again. Apart from the other preliminary point, Watt-Pringle also launched a competent attack on the merits of the Sibanye-Stillwater application, pointing out several defects in their founding affidavit and supporting documents amounting to more than 2 500 pages.
After a lengthy wait of exactly two weeks since the arguments of AMCU and Sibanye-Stillwater were put to court, Judge Prinsloo this morning handed down judgment in less than a minute. Standing out in the judgment, was that Judge Prinsloo noted the bullying tactics of Sibanye-Stillwater to serve a massive application of more than 2 500 pages on AMCU, giving it mere hours to reply. This happened despite the Judge Thlothlalemaje’s scathing remarks in this regard, when handing down the previous judgment. This resulted in a punitive costs order being granted against Sibanye by Judge Prinsloo.
This now means that the order by Judge Thlothlalemaje for a membership verification at Sibanye-Stillwater stands. On 3 January 2019 Sibanye-Stillwater attempted a short-cut to avoid a full membership verification, but AMCU then requested urgent leave to appeal from the Labour Court. Ironically, while Sibanye-Stillwater is constantly blaming AMCU for delaying the process, it has up to now failed to file papers opposing the appeal. The outcome of the appeal process is yet to come, but AMCU is convinced that a proper verification will prove that we remain the biggest union at Sibanye-Stillwater’s gold operations.
AMCU is elated about today’s victory. It is truly a victory for workers’ rights and a landmark victory in the history of South African labour law. We keep on wondering why the mining bosses prefer to spend millions on attacking our right to strike, while this money could much rather be paid to give a living wage to mineworkers. We will stop at nothing to protect the rights of our members in pursuance of better working conditions. We remain open for engagement with the employer, in order to arrive at a resolution to the wage dispute.