Amcu v Buffalo Coal Dundee (Pty) Ltd (JA42/2015) [2016] ZALAC 18 ; [2016] 9 BLLR 955 ; (2016) ILJ 2035 (11 May 2016) per CJ Musi JA [Coppin JA and  Makgoka AJA concurring]

The Labour Appeal Court disallowed the appeal and confirmed the order of Prinsloo AJ in the Labour Court which refused to grant a declaratory order and other relief concerning an alleged failure by the employer to comply with a fair procedure in terms of section 189A(13) of the LRA and with section 52 of the Mineral Petroleum Resources Development Act (MPRDA).

LAC Summary:

Interpretation of section 52(4) of the Mineral Resources and Petroleum Development Act (MRPDA) in relation to the holder of a mining right that has subcontracted the mining operation to another entity in the event of retrenchment.  Question for consideration is whether mining rights holder entitled to be part of the consultation process in terms of section 189 of the LRA – interpretation must be consonant with the objectives of the MRPDA to ensure that holders of mining and production rights contribute towards the socio-economic development of the areas in which they are operating – mining rights holder submitting a social and labour plan and it would be senseless to do so if it were to be excluded from the consultation process – irrespective of the fact that the mining rights holder subcontracted the mining operation, the mining rights holder remains responsible for the implementation of the retrenchment process.  NUM v Anglo American Platinum distinguished – contractor was supposed to invite the mining rights to be part of the whole retrenchment process.  The mining rights had a duty to insist to be part of the retrenchment process.  The failure of the mining rights holder to be part of the process rendered it procedurally unfair.  Despite the procedural flaw, court finding that reinstatement impractical – Appeal dismissed – Labour Court’s judgment set aside only to the issue of costs.

Excerpts

54]       In my view, section 52(4) is not and was not intended to be surplusage.  Section 52(4) of the MPRDA and 189 of the Act can be reconciled without any modification.  Section 189 caters only for the employer.  If it is read with section 52(4) however, the mineral right holder, even though not the employer would alone and or together with the employer be responsible for the implementation of the retrenchment process.

[55]      The mischief that the legislature wanted to prevent is a situation where the mining right holder would submit a grand SLP; be granted mining rights; employ a contractor and escape all liability or responsibility in terms of the SLP.  The contractor would, like in this case, argue that it has no responsibility in terms of the SLP.  The workers and the community, where the mining operations are or were, would then be prejudiced.

[57]      Section 101 of the MPRDA also makes plain that the holder of a right remains responsible for compliance with the provisions of the Act.

[58]      The first respondent was supposed to invite the second respondent to be part of the whole retrenchment process.  The second respondent had a duty in terms of section 52(4) of the MPRDA to be part of the retrenchment process.  The failure of Zinoju to be part of the retrenchment process rendered that process procedurally unfair.

[59]     Having come to that conclusion, however, I do not think that this is a matter where this Court should order the reinstatement of the second to further appellants pending compliance with section 52 of the MRPDA.  I say this for the following reasons.  The first appellant requested and was given the financial statements of Zinoju before the consultation process was terminated.  It did not indicate how the dismissals could be avoided based on the information in the financial statements.  In fact, even in the court a quo and before us it could not demonstrate how the information in the financial statements would have led to the avoidance of the dismissal of any of the second and further appellants.

[60]     AMCU was not bona fide during the entire process.  It engaged Mr Johnson whilst knowing that he was employed by a competitor of the first respondent.  Mr Johnson was actually busy with reconnaissance work on behalf of the first respondent’s competitor that had an interest in buying some of the mines of the first or the second respondent.  AMCU knew or ought reasonably to have known this.