CASE NO. 622/97 & 623/97
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
THE BENICON GROUP
APPELLANT
AND
NATIONAL UNION OF METAL WORKERS OF

SOUTH AFRICA AND 185 OTHERS
RESPONDENTS

BEFORE:    HEFER, OLIVIER, ZULMAN JJA, FARLAM AND MADLANGA
AJJA

HEARD:

3 SEPTEMBER 1999

DELIVERED: 1 OCTOBER 1999

Labour law - unfair dismissal - reinstatement

FARLAM AJA

J U D G M E N T

FARLAM AJA:
[1] The appellant is a company involved in the mining industry, the civil engineering
industry and in leasing out civil engineering and mining equipment.
[2] On 10 August 1992 the appellant dismissed those of its workers who had participated
in a nationwide stay-away which took place on Monday 3 and 4 August 1992 and which was
called by the ANC - COSATU - SA Communist Party Alliance to protest against the collapse

of the CODESA constitutional negotiations.
[3] The dismissed workers, together with their union, the National Union of
Metalworkers of SA, sought reinstatement in unfair labour practice proceedings in the
Industrial Court before Labuschagne AM.
All the workers who were dismissed, with the exception of those who worked at a site
at Syferfontein, had participated in an earlier stay-away on 23 July 1992.  The Industrial
Court ordered the reinstatement of the workers who were employed at the Syferfontein site
but the application failed in so far as it related to the other employees.
[4] The unsuccessful applicants appealed to the Labour Appeal Court (LAC) where the
matter was heard by Cameron J and two assessors.  The appeal was allowed and the
determination of the Industrial Court (insofar as it related to the unsuccessful individual
applicants) was set aside and in its place was substituted a determination to the effect that the
dismissal of the individual applicants was an unfair labour practice and that they were to be
reinstated in their employ on terms and conditions no less favourable than those which were
operative at the date of their dismissal.  It was further ordered that the reinstatement was to be
effected from 20 February 1996, being the date of the Industrial Court determination but not
from any preceding date.  There was no order as to the costs of the appeal.
[5] The judgment of the Industrial Court has been reported: see  [1996] 3 BLLR  330
(IC).  The judgment of the LAC  has also been reported: see (1997) 18 ILJ 123 (LAC).
[6] Counsel for the appellant attacked some of the findings made by the LAC
and submitted that this court is not bound thereby.  On the other hand counsel who appeared
for the respondents, relying on National Union of Mineworkers v East Rand Gold and
Uranium Co Ltd 1992 (1) SA 700 (A) at 723 B - G,  Performing Arts Council of the
Transvaal v Paper, Printing, Wood and Allied Workers= Union and Others 1994 (2) SA 204
(A) at 214 E - F, National Union of Metalworkers of SA v Vetsak Co-operative Ltd and
Others 1996 (4) SA 577 (A) at 593 H - I and 583 I - 584 C and the judgments of Smalberger
JA and Scott JA in Betha and Others v BTR Sarmcol,  a Division of  BTR Dunlop Ltd 1998
(3) SA 349 (SCA)  at 387 C - F and 405 C - 406 E, contended that this court is bound by such
findings inasmuch as they related to the facts.

The main findings which counsel for the appellant attacked related to the question as
to whether the workers in the appellant=s employ could have been
confused about the appellant=s policy regarding stay-aways immediately before they
participated in the stay-away which took place on 3 and 4 August.  The findings of the LAC
which appellant=s counsel attacked are contained in the LAC=s reported judgment at 145 E - I.
For the purposes of this judgment I am prepared to assume, without deciding the point, that
this Court is entitled to overturn the findings in question.  On the view I take of the matter
these findings are not decisive on the question as to whether the appellant=s action in
dismissing the individual respondents was an unfair labour practice.
[7] This court=s task is to pass what by its nature is a moral or value judgment on the
question as to whether the appellant=s action in dismissing the individual respondents
amounted to an unfair labour practice.  The ultimate determinant in such an enquiry is
fairness, by which is meant fairness to both the employer and the employee.
[8] Obviously the inquiry whether the dismissals in this case were fair or unfair involves
a consideration of all the relevant facts.  As the judgments of both the Industrial Court and
the LAC have been reported it will be sufficient to give a summary of the more significant
facts.
[9] The first stay-away experienced by the appellant was on Soweto Day, 16 June 1992.
On 15 June 1992 the appellant had a meeting with representatives of the union, viz
the union organizer from Witbank and the elected shop stewards.  It was agreed at the
meeting that the 16 June stay-away would be dealt with by the application of the principle
Ano work/no pay/no penalty@.
[10] After the 16 June 1992 stay-away a meeting took place between the management of
the appellant and the union organiser and three of the shop stewards.  After this meeting
management issued a memorandum to all staff members in which it was stated that in future
disciplinary action would be taken against any person taking part in an illegal strike/stay-
away action.
[11] On 21 July a further meeting took place between management and the union organiser
and certain shop stewards.  At this meeting the union organiser mentioned that the union

planned certain actions beginning on 22 July but  not that a stay-away was anticipated for 23
July.
[12] On 22 July, after 4 pm, one of the shop stewards told the appellant=s managing
director and its plant director that a stay-away was planned for the next day.
On 23 July
the planned stay-away, which took the form of a march to the office of the local receiver of
revenue, took place.
[13] On 24 July the workers returned to work and each was served with a notice to attend a
disciplinary hearing on 25 July.  The charges were:
failing to report for duty on 23 July 1992;
absence without permission from work; and
disobeying company rules and regulations.
[14] On 25 July disciplinary hearings were held.  Those who had stayed away on 23 July
were found guilty and dismissed.    The dismissals were not implemented but instead, at the
end of the proceedings on 25 July it was agreed that a meeting would be held on Tuesday 28
July.   On 27 July the workers were given the day off to prepare themselves for the meeting
the following day.
[15] On 28 July  the meeting to which I have referred was held at the appellant=s head
office between the whole workforce and representatives of management.  The shop stewards
were present but no union officials.  The meeting was held in a large marquee tent which was
hired for the occasion.  In evidence and argument this meeting was called the Atentberaad@.
Although there was a dispute in the evidence between Van Rooyen, the appellant=s
plant director, who was the only witness called on its behalf, and Maduna, one of the shop
stewards,  who testified on behalf of the respondents, as to the purpose of the Atentberaad@ the
LAC found that the determination of stay-away policy was pivotal to the meeting.  A
workers= committee, or liaison committee, was elected in the presence of management.  The
LAC found that the liaison committee idea originated with management and that its purpose
was to liaise with management on future stay-aways.  The LAC also found that the liaison
committee  replaced the shop stewards committee but that management in initiating the

liaison committee had not deliberately attempted to sideline the union.  Nevertheless, so it
was held, management had  acted imprudently (albeit in good faith) in procuring the
replacement of the union and elected union representatives by the workers themselves.  The
LAC in fact described  management=s action in initiating the liaison committee as a Agaffe@.
[16] There was a dispute on the evidence as to whether those present at the Atentberaad@
decided in principle, as management alleged,  that the entire workforce would in future report
for duty in the event of a stay-away but, if not, the hours to be lost would be worked in, in
advance, so as to stockpile coal.  In addition it was agreed, so the appellant averred, that a
core of workers would in any event report for duty during stay-aways.
[17] The Industrial Court found that the workers did agree at the Atentberaad@ as the
appellant alleged: see its judgment at 337 E - F.  This finding was overturned by the LAC
which found that no final or binding agreement was reached at the Atentberaad@: see the LAC
judgment at 134 F.  In my opinion there is no basis for not accepting this finding by the LAC,
whichever of the approaches to factual findings of the LAC set out in the various judgments
in Betha and Others v BTR Sarmcol, a Division of BTR Dunlop Ltd, supra is adopted.
[18] At the Atentberaad@ the dismissals of the workers for participating in the 23 July stay-
away were withdrawn.  There was a dispute between the parties as to whether after the
dismissals were withdrawn the workers were given an oral final warning.  Although the LAC
said that it was open to question whether or not a warning was given it held (at 136 F) that
Athe presence or absence of such a warning and its status as final or otherwise is . . . not
decisive for the justice of the case@.
[19] On Wednesday 29 July, after the union=s  Witbank organizer had warned one of the
shop stewards that the election of the liaison committee meant Ataking the union out@, the
workers had a meeting at which it was decided that those elected to the liaison committee
would withdraw therefrom.
[20] During the morning of Thursday 30 July the two headquarters representatives on the
committee met with management.  After lunch the headquarters representatives did not return
to the meeting: instead they sent a letter saying that they had decided to withdraw because Ato
be in the committee is too demanding@. The LAC found that this reason was absurd and
evasive and that the reason given later,  that they perceived the liaison committee to be a

strategy of the appellant designed to bypass proper consultation with the duly elected shop
stewards= committee and/or officials of the union, was Aboth more candid and more accurate@
(at 135 G).
[21] Following on the collapse of the liaison committee neither the representatives of
management nor the workers appear to have made any effort to re-establish lines of
communication so that hours could be worked in, in  advance, so as to stockpile coal before
the impending two day stay-away planned for 3 and 4 August (for which a general nation-
wide  call had gone out some three weeks before) and arrangements could be made for a core
of workers to work on 3 and 4 August.
Instead management caused a memorandum to
be put in each worker=s pay packet on Friday, 31 August.  This memorandum, which each
worker received just before leaving on the Apay weekend@ immediately before the stay-away
planned for Monday 3 and Tuesday 4 August, read as follows:
AVERY IMPORTANT NOTICE!!!
The following steps will be taken against persons not at work on the 3rd of August
1992.
NO WORK NO PAY
NORMAL BONUS PENALIZATION PROCEDURE
Persons not at work on 4 August 1992 or any other day in future on which a
stay-away or mass action takes place, will run the risk of being
DISCHARGED IMMEDIATELY !!!
By order
BENICON MANAGEMENT@

[22] On 3 and 4 August only 63 of the appellant=s workforce reported for duty.
[23] On Wednesday 5 August the workers returned to work.  Each received an  AAdvice to
Attend disciplinary Hearing@, which read in part as follows:

AAlleged misconduct: not at work on 3rd and 4th of August 1992.  The charges against
you are: Absent from work without permission.@

[24] On Thursday 6 August, after a mass hearing, conducted at the insistence of the
workers, they were found guilty of misconduct.
[25] Further discussions then took place on Friday 7 and Monday 10 August.  The subject
of the discussions was further stay-aways.   Van Rooyen testified  that these discussions were
designed to ascertain whether satisfactory arrangements could be made with regard to future
stay-away actions, which could then serve as mitigation in the determination of an
appropriate sanction.
[26] No agreement on this topic was arrived at.  The workers insisted that the principle Ano
work/no pay/no penalty@ should apply in respect of future stay-aways and that if some
personnel was to be provided during future stay-aways management had to furnish full
security for it.
[27] Appellant was not prepared to agree thereto.  Its response was to propose to the union
that the workers who had been found guilty of misconduct for participating in the stay-away
should not be dismissed provided every employee signed an agreement in the following
terms:
A1
Hundred per cent attendance of all employees during any further stay-away,
mass action, illegal strike and/or any planned or unplanned work boycotts or
go-slow actions.
With reference to the actions mentioned in para 1 Benicon would not only
expect employees to be present at their normal place of work, but also to
perform their normal duties at the required production tempo.
Normal working hours must be adhered to during action referred to in para 1.
Should the employees not attend work and perform as stipulated in 1, 2 and 3,
the employees= action will be viewed as breach of this agreement and will be
dismissed immediately.

Benicon undertakes not to lock out any employee who wishes to attend work
at such times referred to as in para 1.
All other Benicon rules and regulations must be adhered to.@

This proposal having been rejected, the workers were dismissed, retrospectively from
4 August.
[28] Management was however, despite the dismissals, prepared to take the workers back,
provided they accepted its terms.  The re-employment terms included an absolute prohibition
on future participation in stay-aways.  A Memorandum of Agreement dated 12 August
between the appellant and certain newly re-employed workers read:
A1
The employee undertakes not to take part in any future illegal industrial
action, mass actions, or stay-aways, and to be present at his workplace and to
perform his duties faithfully.
The employee undertakes to abide by all the rules and regulations of the
company at all times.
The company undertakes not to lock out the employee during any action
referred to in para 1, if he turns up to work.
The company undertakes to sanction [rescind?] the decision to dismiss the
employee as a result of the disciplinary hearing held on 6 August 1992.
Instead a final written warning will be placed on his file.@

[39] The Industrial Court, as has been said, refused the application for re-instatement save
in so far as it related to the workers at the Syferfontein site.  A substantial part of its judgment
is devoted to comparing the facts of this case with those in National Union of Mineworkers &
Others v Free State Consolidated Gold Mines (Operations) Ltd;  President Steyn Mine;
President Brand Mine; Freddies Mine, 1996 (1) SA 422 (A) (the AFreegold case@): see the
reported judgment of the Industrial Court at 349 F - 353 C.

[30] One of the factors strongly relied on by the Industrial Court in support of its finding
that the dismissals were not an unfair labour practice was the fact that the workers had, as the
Industrial Court put it, Areneged  on their undertaking@ given at the Atentberaad@ to minimise
the disruption of the appellant=s operations: see the judgment at 351 E - F.  As has previously
been pointed out, the Industrial Court=s finding that such an undertaking was given by
workers at the Atentberaad@ was overturned by the LAC.
[31] The Industrial Court also found that contracts the appellant had with its customers had
been cancelled because of the August production standstill.  The LAC found that the
evidence did not warrant this finding and that it was never established that causally the
cancellations which did take place thereafter were attributable to the standstill.
[32] The LAC held that the factual premises and reasoning on which the Industrial Court
concluded that the dismissals in this case were fair could not be sustained.  It summarised its
views on the merits at 146 G - 147 C of the reported judgment.
[33] Among the points made by the LAC was that management was Ain central measure
responsible@ for the breakdown in communication between management and the workers
shortly before the pay weekend of 1 and 2 August, which preceded the stay-away.  This was
because A[i]ts liaison committee initiative was naive in its conception and misdirected in its
execution.  After this@, so continued the LAC, Athe formulation or finalisation of a mutually
acceptable policy in time for the 3 - 4 August stay-away became impossible.  To hold the
workers solely liable, as the Industrial Court did, is most inequitable.@  (See the judgment at
146 H - I.)
[34] Mr Rabie, who appeared on behalf of the appellant, contended that the LAC fell into
error in adopting this approach.  He submitted that even if the appellant did make a mistake
in initiating the election of the liaison committee this factor was irrelevant to a decision as to
whether the dismissals were unfair.  He said that this was so because it was clear that even if
the Atentberaad@ had not taken place the stay-away would still have occurred and the
dismissed workers would have participated therein.
[35] He submitted further that the workers= subjective perception of their entitlement to
join the stay-away was also irrelevant to the decision as to whether the dismissals were unfair
and that the LAC erred in regarding it as a mitigating factor.

[36] He also argued that an important aggravating factor to which adequate weight had not
been accorded  by the LAC was the fact that the continued existence of the appellant had
been put in danger by the workers= participation in the stay-away.
[37] In my view these contentions cannot be sustained.  It is clear from what was said in
the Freegold case (at 449 C) that even if the stay-away was not to be regarded as a legitimate
form of protest in the particular circumstances of this case (a matter on which I, like the
LAC, express no opinion), the fact that those who participated in the stay-away perceived it
to be  legitimate and regarded their absence as being for good reason constitutes a mitigating
factor to be taken into account in any equitable assessment of the fairness of the dismissals.
[38] It was also not correct to say that the management=s Atentberaad@ initiative regarding
the liaison committee was not causally related to what happened thereafter and was
accordingly irrelevant.  While it is true to say that the workers on all the probabilities would
have participated in the stay-away even if the Atentberaad@ had not taken place the matter
does not end there.  I say that because Mr Rabie contended that it was an aggravating factor,
weighing against the workers, that their participation in the stay-away had put the future
existence of the appellant at risk.  This was due, in part at least, to the fact that extra hours
had not been worked in, in advance, before the stay-away so that a stockpile of coal could be
produced to tide the appellant over the stay-away period when production would cease.  In
my view the fact that a stockpile was not produced was due, again in part at least, to the
breakdown in communication between management and the workers which followed on
management=s Agaffe@, as the LAC called it, in initiating the formation of the liaison
committee.  That being so, there was a causal connection between the putting at risk of the
continued existence of the company  and the appellant=s actions at the Atentberaad@, which
affected the weight to be given to this factor in deciding on the fairness of the dismissals.   It
follows that in assessing the fairness of the dismissals what one can call the Atentberaad@
factor was relevant. It follows further that the  factor which Mr Rabie submitted was an
important aggravating factor weighing against the workers was not accorded insufficient
weight by the LAC.
[39] When a moral judgment or value judgment has to be  passed regarding the fairness or
unfairness of the dismissals  it is important to bear in mind, in my view, on the particular

circumstances of this case, that the appellant, even after the stay-away, was willing to keep
the workers in its employ if they were prepared to agree not to participate in future illegal
stay-aways.  If they had breached such an agreement in the future it would have been difficult
to contend that their dismissal for such breach would not be fair.  But essentially the same
result could have been achieved by keeping them in their employment but giving them a final
written warning.  Such an approach would have been more in keeping with the view, to
which this court has given its approval (Freegold case at 448 H - I), that dismissal Ais the
ultimate sanction; a course of last resort@.
[40] In my opinion the dismissals in this matter were unfair and the appeal against the
LAC=s judgment should be  dismissed with costs including those of two counsel, there being
in my view no reason that costs should not follow the result.
[41] Together with the appeal  three applications for condonation were argued: two
brought by the appellant (one for the late filing of the notice of appeal and the other for the
late filing of the record) and one by the respondents (for the late filing of an affidavit
opposing the appellant=s application for condonation of the late filing of the record).
[42] In my opinion all three applications should be granted.  The respondents= application
was not opposed and nothing more need be said about it.  The appellant=s applications were
opposed but it is clear that its failure to file its notice of appeal and the appeal record
timeously was not due to any default on its part but to the negligence of its attorney.
It
cannot be said on the facts of this case that it must have been obvious to the appellant that
there was a protracted delay and it is not disputed that it had left the matter entirely to its
attorney, in whom it had full confidence, and that it had no reason to believe that the rules
had not been complied with.  As far as the costs of the appellant=s applications for
condonation are concerned Mr Rabie conceded that the respondents were entitled to the costs
of the application including the costs of opposition.

[43] Since writing paragraphs [1] to [42] above I have had the advantage of reading the
judgment prepared in this matter by my learned brother Olivier in which the view is stated
that the respondent workers were not unfairly dismissed by the appellant.  I have carefully
considered all the points made in my learned brother=s judgment and have retraced in my

mind all the steps along the path which led me to the conclusion that the appeal should be
dismissed.  Having done so, I remain of the view that the dismissals in question were unfair.
[44] As appears from paragraph [6] of my learned brother=s judgment  the major point of
disagreement between us is whether the decision of the LAC that management was Ain central
measure@ responsible for the breakdown in  communications and that Aits liaison committee
initiative was naive in its conception and misdirected in its execution@ has to be accepted as
correct and relevant.  I agree with the LAC=s finding on the point and am of the view that we
are bound by it.  Whichever of the differing approaches  to factual findings of the LAC set
out in the BTR case is adopted I am satisfied that no basis exists for overturning the LAC=s
finding on this point.  I am not aware of any misdirection by the LAC nor do I think that it
can be said that no reasonable court could have come to that finding.
Indeed the passages from Van Rooyen=s evidence quoted by my brother in my
respectful view, support the LAC=s finding.
When asked the direct question who first came up with the idea of a new committee
Van Rooyen=s answer was hardly a model of clarity but he did say that the workers agreed
that the problem at the various sites was different and he added that they, i e, management,
said that if every site chose its representative to bring the site=s problems to management then
the problem would be so much easier.  These answers go very far in my view in providing a
basis for the LAC=s finding on the point that the initiative for the setting up of the liaison
committee came from management, as Maduna testified.  Once one accepts this finding by
the LAC then the impact of the other factors listed in paragraph [14] (a) to (h) of my brother=s
judgment becomes far less important.
[45] My learned brother then poses two questions which he says are the real important
ones: (a) was the appellant=s demand that the workers undertake not to participate in future
illegal stay-aways reasonable?  And (b) was the refusal of the workers to accede to this
request reasonable?
I am not sure that these questions are the real important ones nor do I think that the
converse of a finding in favour of management on the first is a finding against the workers on
the second.  As my learned brother fairly points out (in paragraph [13] of his judgment) the
workers were in an invidious position.

[46] What may be called the bottom line of my learned brother=s judgment is to be found,
in my view, in his statement in paragraph [11] that the refusal of the employees to agree to a
regime of non-participation  in illegal stay-aways inexorably implies an intention to take part
in illegal action against the employer and Athe law cannot countenance such an attitude@.
I agree that the law cannot countenance such an attitude  and I also agree   that the
law will not inexorably uphold a dismissal in such a situation.   I have tried to show in my
judgment that there was something the employer could have done, falling short of dismissal,
which would have been appropriate in this case.
[47] That does not mean that the workers were free from blame and not liable to
disciplinary action.  Indeed as counsel for the respondents pointed out, the order made by the
LAC, that the workers were only to be re-instated with effect from the date of the Industrial
Court=s order, does involve disciplinary steps being taken against the workers.  Though they
were not solely responsible for the fact that steps were not taken to minimise the effects of
the disruption (as the Industrial Court wrongly found) they were to a substantial degree
responsible and disciplinary steps, falling short of dismissal, were appropriate.
[48] My learned brother seeks to make something of the fact, which I accept without
hesitation, that the appellant adopted an accommodating and supportive attitude towards the
workers and says (paragraph [14] (d)) that Athis, surely is not the attitude of an employer bent
on getting rid of its employees in an unfair manner@.  I do not understand that to be the test.
The dismissals cannot only be set aside if the employer was Abent on getting rid of its
employers in an unfair manner@ (and to be fair to my learned brother I do not understand him
to say that that is the test).
[49] What has been said over and over again in these cases is that one must be fair to both
sides.  If the only test to be applied is fairness to the employer then there is much to be said
for a finding in the appellant=s favour.  But fairness to the workers, in my considered
judgment, requires a disciplinary step falling short of the course of last resort.
[50] The following order is made:
(a)
Appellant=s applications for condonation for the late filing of the notice of
appeal and the appeal record are granted.

(b)
Appellant is ordered to pay the respondents= costs of the applications including
the costs of opposition.
Respondents= application for condonation of the late filing of their affidavit opposing
appellant=s application for condonation for the late filing of the appeal record is
granted.
The appeal is dismissed with costs including the costs of two counsel.

I G FARLAM

ACTING JUDGE OF APPEAL

CONCUR
ZULMAN JA
MADLANGA AJA

OLIVIER JA
[1] I do not share the view that the appeal falls to be dismissed.
[2] Cameron J summarized the reasons for his finding that the dismissal was unfair as
follows:
There was confusion, both in reality and in the workers= minds,
about the consistency and rigour of management=s policy on stay-
aways.
There was a breakdown in communication between Benicon and
its employees, following on the disintegration of the liaison
committee on 30 July, shortly before the weekend preceding the

stay-away.   Management was in central measure responsible for
that breakdown.   Its liaison committee initiative was naïve in its
conception and misdirected in execution.   After this, the
formulation or finalisation of a mutually acceptable policy in time
for the 3 and 4 August stay-away became impossible.   To hold
the workers solely liable, as the industrial court did, is most
inequitable.
Unlike some strike cases, the withdrawal of labour here did not
involve a fight to the death. By admission of the perpetrators, and
by recognition of management, the stay-away was designed to be
incidental and limited.
Benicon seems to have dismissed the workers not for participation
in the stay-away on 3 and 4 August, but for refusing to agree to
work on future stay-aways.
In order to deal with these  reasons a brief discussion of the events from June to August 1992 is
required. I will refer to the appellant as Benicon.
[3] Although Benicon agreed on 15 June not to take disciplinary action against workers who
did not report for duty on Soweto day (16 June),  management issued a notice to all staff
members on 19 June in the following terms:

ARE : ILLEGAL STRIKE ACTION/STAY-AWAY ACTION

Please take note of the following :
In future disciplinary action will be taken against any person taking part
in an illegal strike/stay-away action.
By order.
BENICON MANAGEMENT@

The company=s policy could not have been expressed in clearer terms. Yet, on 23 July, another
stay-away occurred when its workers joined a march to the office of the Receiver of Revenue.
Not unexpectedly their conduct lead to disciplinary hearings and the dismissal of all the guilty
ones.  But the dismissals were not immediately implemented because the workers wanted to
discuss matters and management was prepared to listen. For this purpose the tentberaad  was
arranged and held on 28 July. The so-called workers= committee was elected and the dismissals
withdrawn. But the committee soon proved to be a failure and, because there was an imminent
threat of another stay-away on 3 and 4 August, management on 31 July  had the following notice
inserted in every worker=s pay-packet :

AVERY IMPORTANT NOTICE!!!
The following steps will be taken against persons not at work on
the 3rd of August 1992.
<
NO WORK NO PAY
<
NORMAL BONUS PENALISATION PROCEDURE
<
Persons not at work on the 4th of August 1992 or any other
day in future on which a stay-away or mass action takes
place, will run the risk of being DISCHARGED
IMMEDIATELY!!!!
By order
BENICON MANAGEMENT@

With a few exceptions the entire workforce ignored this unambiguous ultimatum with the result
that those who had not heeded it were again summoned to attend disciplinary hearings. They
were found guilty but again further discussions were held to ascertain whether suitable
arrangements with regard to future stay-aways could be made. When this proved to be

impossible because the workers were not prepared to commit themselves to Ahundred percent
attendance ... during any further stay-away, mass action, illegal strike and/or any planned or
unplanned work boycotts or go-slow actions@ they were dismissed.
Not one of the stay-aways had anything to do with working conditions or with anything
that Benicon had done or not done. On 3 and 4 August the workers took part in action called for
by the tripartite ANC/COSATU/SACP alliance to protest against the collapse of the CODESA
constitutional negotiations.   The evidence on this point is clear, coming as it does from the
respondents= own witness, Van Castle.   He testified that approximately 100% of the employees
in the area supported the stay-away.   Other strategies to exert political pressure on the then
government were discussed, but the Alliance decided upon that particular stay-away. Frank
Boshielo, a secretary of Numsa in the region, testifying on behalf of the respondents, confirmed
that the stay-away of 3 and 4 August 1992 was organised from June 1992 onwards by the
Alliance.   The looming stay-away was discussed with the employers in the region, inter alia the
Chamber of Commerce, Escom and Highveld Steel.   He testified as follows :

AThe Chamber of Commerce requested us that are we able or
could we be able to call off the matter at our region.   We said that
- our answer was that we can=t say anything because it=s a matter
which is from the national level.@

It is quite plain, therefore, that nothing that Benicon could do, could induce the workers to work
on 3 and 4 August. At the tentberaad it proposed  as a compromise that the workers work  on
Saturday, 1 August or Sunday, 2 August in order to build up a stockpile or that they provide a
skeleton staff on 3 and 4 August. As will presently appear, this came to nought.
[4] With this in mind I proceed to deal with Cameron J=s reasons seriatim.
[5] Ad 1
As  appears from 129D of the Court a quo=s judgment, the possibility of confusion was
mentioned in argument. But it did not form part of the respondents= statement of case that the

workers were confused at any stage, and not one of their witnesses testified that he or she was
uncertain of Benicon=s stance in respect of the stay-away of 3 and 4 August. Moreover, I fail to
see how they could have been after receipt of the notices of 19 June and 31 July. As Cameron J
himself said at 129G-H,
A[t]he 19 June memorandum was placed in every worker=s pay-packet.
Whatever its provenance and purport, it contained a clear warning that
management, whether consistently or inconsistently, and whether in
justifiable response to the breach of an agreement or not, proposed in
future to apply >disciplinary action= against workers who took part in an
illegal strike or stay-away action.@

The learned judge held (at 129E-G) that the impression of flux is accentuated by Benicon=s
willingness to negotiate about its stay-away policy. But he lost sight of the witness Van Rooyen=s
undisputed evidence (still to be cited) that it was at the workers= request that further discussions
took place after the dismissals following upon the stay-away on 23 July. And there was in any
event no causal relationship between the so-called confusion and the workers=  ultimate
dismissal. The evidence is clear that already two or three weeks prior to 3 and 4 August 1992 the
die had been cast : there was going to be a stay-away during the week commencing on Monday,
3 August.
[6] Ad 2
In my view, the finding by Cameron J that management was in central measure
responsible for the breakdown in communications and that ... its liaison committee ...  initiative
was naïve in its conception and misdirected in its execution, is one that no reasonable court could
have come to.   We are not bound by it.   Because it plays a central and pivotal role in the
decision of the court a quo, the misdirection on this point flaws the decision in its entirety.
Cameron J relied on the evidence of Maduna which was to the effect that Van der Merwe
had said, in the course of the tentberaad, that the workers must form a liaison committee, and
stated that at one point Van Rooyen virtually conceded that management had taken the initiative
on this score.  But, in fact, Van Rooyen was cross-examined extensively and repetitively on this

point.   He explained over and over that after the workers had complained about a lack of
communication, the problem of communication was addressed at length.   For the sake of
completeness, I quote from the record where Van Rooyen was cross-examined by the Appellant=s
counsel :
AIs dit korrek, Meneer, dat die idee om die liaison committee te stig, dit was
Benicon bestuur se idee gewees, is dit korrek?   ---   Nie in die minste nie, mnr
die President.
Goed.   Wie se idee was dit gewees?   ---   Dit was ons almal se idee.

Wie almal?   ---   Al die mense wat by Benicon gewerk het.

Nou beskryf net asseblief >n bietjie hoe dit gekom het, hoe julle almal by daardie
idee uitgekom het?   ---   Mnr die President, ek verwys spesifiek na een van die
dissiplinêre verhore wat gehou is by ons hoofkantoor op Saterdag, die 25ste.
Ons het aan die mense voorgehou dat hulle afbetaal is as gevolg van
wegblyaksies, toe sê hulle,  >Nee, nee, nee, nee, daar moet >n manier wees om
hierdie saak uit te sorteer=.  Toe sê ons,  >Okay, wat is die - wat gaan ons doen?=
en op daardie dissiplinêre verhoor is daar toe besluit dat ons bymekaar moet kom
en hierdie probleem wat ons het uit te sorteer en ek het getuie daaroor gelewer
dat ons het gesê ons maak die deure van die ou Benicon toe en hierdie is die
nuwe Benicon en dit het toe gelei tot by die tentberaad.    Daar het ons bymekaar
gekom.   Elkeen het sy geleentheid gehad om sy sê te sê.  As hy wou praat, kon
hy praat.   Wit, swart, almal en toe is daar voorstelle op die tafel gesit en gesê
daar is >n kommunikasie probleem, ons kan nie mooi met mekaar praat nie.   Wat
gaan ons doen?   Toe is daar besluit om op elke site mense te verkies.   Hulle is
ook verkies deur die mense.   Nie een van bestuur het daar gestaan en gesê,  >Jy
moet gekies word=  of,  >Jy moet nie gekies word nie=.   Inteendeel, die
werkvloerverteenwoordigers van NUMSA was betrokke van die begin af met
hierdie ding.  Hulle het die stemme getel en vertaal, getolk.   Dis wat gebeur het.

Maar wie het nou vorendag gekom met die idee met nou >n nuwe
komitee?   Wie was die eerste wat met daardie idee vorendag gekom het?   ---
Mnr die President, die mense het vir ons gesê dat hulle het >n probleem om te
kommunikeer met bestuur.  Toe sê ek , >Nou maar hoe gaan ons met bestuur
praat?=.   >n Voorstel was dat verteenwoordigers van die site met bestuur kom
praat en hierdie hele komitee idee was verfyn met die bespreking wat ons met die
mense gehad het.   Hulle het saamgestem dat die verskillende sites se probleme is
anderste.   Jy het die padmakers, jy het die ouens wat die klippe grou.   Jy het
ouens wat met bulldozers by Landau werk, so elkeen se situasie was anderste en
op daardie vergadering het ons gesê, >Nou, maar as elke site sy mense - sy
verteenwoordigers verkies om daardie site se probleme na bestuur toe te bring,
dan gaan dit die probleem soveel makliker maak=,  want hulle probleme is nie
almal dieselfde nie en dit is op die tafel gesit en almal het saamgestem en toe is
die persone verkies.

Mnr Van Rooyen, dit is waar, nie waar nie, dat die idee van >n
afsonderlike komitee wat gekies moet word, dit het van bestuur se kant af gekom,
korrek?   ---   Mnr die President, dit was nie >n bestuur gedrewe ding nie.
Hierdie was >n ding wat ons saam besluit het.   Die enigste ding wat bestuur
gedoen het was om hierdie goed op >n stuk papier neer te skryf, maar wat gesê is
in daardie - in daardie tent op die 28ste, die mense is nie aan hulle neuse
rondgelei nie.   Glad nie.   Daardie dinge is saam besluit en dinge waaroor ons
saamgestem het, het hulle hulle hande in die lug ingesteek, die teken gegee,
hande geklap.   Dit was die gemoed in daardie tent.  >n Gemoed van
samewerking, van die ou deure toegemaak het van die verlede.   Dis wat die
gemoed in daardie tent was en dit is hoe die ding vorentoe gesien het.

Ek vra nie oor die besluit nie, Meneer, ek vra u nog steeds wie het
aanvanklik met die idee vorendag gekom en dit moes bestuur gewees het, nie
waar nie?  ---   Daar was >n probleem met kommunikasie, wat die mense vir ons
gesê het van die sites af.   Daar was >n probleem, hulle kon nie met ons praat nie
en al wat ons gedoen het op in die tent daardie dag, is om die struktuur en die
manier van kommunikasie op >n stukkie papier te skryf.   Dit het uit die werkers
uitgekom, nie uit bestuur uit nie. ............

Wel, u het alreeds >n komitee gehad, die werksvloerverteenwoordigende
komitee.   Hoekom benodig u >n nuwe komitee?   ---   Mnr die President, ek het
reeds gesê dis nie - die bestuur het >n nuwe komitee benodig het nie.   Die
werkers het vir ons gesê daar is >n probleem om met ons te praat.   Ons het nie
gesê, >Stig >n nuwe komitee=  nie of,  >Moenie met die unie praat nie=.   Nooit nie.
Inteendeel al die mense, ek dink die meeste van die mense wat verkies was op
daardie werkerskomitee of - was mense wat shop stewards was.   Die enigste
verskil was dat die mense wat verkies was, kom uit die site uit.   Dis die mense
saam met wie hulle werk en wie hulle ken.    Nou ek sou geen rede sien hoekom,
as die shop stewards verkies was voor die tyd - ek dink daar is getuienis gelewer
dat daar in 1991 al shop stewards was, dat hulle nie weer sou verkies nie, want
dis mense wat tog saam met hulle werk.   Bestuur vat nie krediet vir daardie
besluit nie, omdat dit nie bestuur se besluit was nie.   Dit was >n besluit van die
mense.@

On the probabilities, Van Rooyen=s evidence is clearly preferable to that of Maduna : the
shop stewards were present throughout the proceedings and would surely not have accepted any
proposal by management inimical to the interests of the Union, but they would have bowed to a
proposal coming from the workers themselves. Moreover, the letter handed to management by
the two head office representatives, Mapanga and Thabethe, after their visit to the Union and
after consultation with the workers reads as  follows :

ATo Benicon Management

We have now decided to withdraw from the position of representing the workers.
We
feel that to be in the committee is too demanding.
We have informed the people and they are still going to decide on that issue of
the new names but they are happy with the withdrawal.

The proposal of the people is that if you wish to see us, we will have the
following names (1) David   (2) Leonard (3) Obed   (4)   Adries

Regards@

The point is that the proposal of the four new names, coming now from the workers
acting on their own, sidelines the Union and in fact proposes a new liaison committee.   It is
ironic that the Leonard referred to is, according to Van Rooyen=s uncontested evidence, Leonard
Mapanga and the David referred to is David Thabethe, the two former members of the Aliaison
committee@at head office who stated in the very same letter that they were finding the work on
the committee too demanding!
Had the court a quo taken a balanced view of the evidence as a whole, it should clearly
have found that the probabilities favour Van Rooyen=s evidence; or, at the very  least, that it
could not decide the issue either way.
Two further points emerge from this analysis. The first is that whoever took the initiative
in the formation of the committee, it was the workers who terminated the communication
established by the committee. Secondly, after the breakdown, the representatives of the workers
communicated with Van Rooyen.   The latter=s undisputed evidence is that subsequent to the
dissolution of the workers= committee, the shop stewards informed Benicon that the workers

were not prepared to make up for loss of production, either before or after 3 and 4 August,
nor were they prepared to constitute a skeleton staff on these two days to maintain essential
services.  This evidence is  not mentioned in Cameron J=s judgment. Its importance is evident:
whether or not the Union was present and involved, the stay-way would have gone ahead and no
accommodation, such as sought by Benicon, would have been forthcoming.. The whole furore
about whose idea the formation of the liaison committee was, is thus causally irrelevant.
[7] Ad 3
To say that the withdrawal of the workers did not involve a fight to the death because the
stay-away was designed to be incidental and limited, misses the central point of the dispute.
Between 16 June 1992 and 4 August 1992 Benicon had suffered three illegal stay-aways.   The
proposals for a compromise  -  stockpiling before a stay-away, a skeleton staff on the day of the
stay-away  -   were not accepted.   There was  deadlock on a matter vital to Benicon.   It then
sought from the workers an undertaking not to participate in illegal stay-aways.   The workers=
refusal to commit themselves was the immediate, direct and effective cause of the dismissal.
The crux of this case is thus, simply, whether the demand by Benicon that the workers
undertake not to participate in future illegal stay-aways, was reasonable or not.  If not, that is the
end of the matter.   If the demand was reasonable, was the refusal to give the undertaking
reasonable and did it justify dismissal?
[8] Ad 4
To say  that Benicon seems to have dismissed the workers not for participation in the stay
away  but for refusing to agree to work on future stay-aways again misses the point. The
uncontested fact is that the workers were found guilty of illegally staying-away from work on 3
and 4 August. Negotiations then took place regarding the proper sanction.   When Benicon=s
demand, discussed in the previous paragraph, was not met, the workers were dismissed.   This is
not unusual or unknown in labour disputes, nor is it unreasonable.
[9] I turn to consider the two questions which I regard to be the real important ones.
[10]       Was the demand by Benicon that the workers undertake not to participate in
future illegal stay-aways reasonable?

In my view, no court of law can find that such a demand was unreasonable.   To do so
would be to undermine the very ethos which a court is required to uphold and to protect.   It
would undermine the very conception of a state built on the idea of justice and would play havoc
with the whole field of labour law and  of the sanctity of contracts lawfully entered into.   I need
say no more than to emphasise that during the later negotiations Numsa conceded that Benicon=s
demand was reasonable.
[11] Was the refusal of the employees of Benicon to accede to Benicon=s request
reasonable?
The converse of the finding that Benicon=s request was reasonable is that a refusal by the
other contracting parties to agree to it, was unreasonable.   To state the obvious : the refusal of
the employees to agree to a regime of non-participation in illegal stay-aways, inexorably implies
an intention to take part in illegal action against the employer.   The law cannot countenance such
an attitude.
[12]       However, the conclusions reached in the two preceding paragraphs do not inevitably
mean that the employer was entitled to dismiss the employees who stayed away on 3 and 4
August 1992 and who refused to give the above-mentioned undertaking.   The ultimate question
is one of fairness to both sides.
[13]      It must be said in favour of the workers that they found themselves in an invidious
position.  At that time in our history  -  1992  -   membership  of one of the Alliance parties
exacted a high degree of solidarity with and obedience to Alliance orders.   Even if the workers
knew that their actions were illegal and could lead to disciplinary action  - as they did in this case
- there was very little they could do about it.   It is not even necessary to count in their favour a
subjective belief in the legitimacy of their actions  - sympathy for their plight speaks objectively
from the facts. On the other hand Benicon had valid and enforceable contracts with the workers
which the latter had unlawfully breached. The company had pressing obligations  towards its
clients and the workers were informed on more than one occasion of its plight and of the
consequences of a stay-away. They chose to be loyal to a political alliance, rather than to their
employer.
[14] In favour of Benicon it must be said that it is difficult to point to any unreasonable

or unfair act or omission leading up to the eventual dismissal.   On the contrary, one gets the
impression of an employer leaning over backwards to accommodate the interests of its
employees.   I mention some of these facts :
(a)
The first important relevant fact, not dealt with by Cameron J and
my brother Farlam, is that Benicon throughout the events
culminating in the dismissal of the Respondents, never refused to
co-operate with Numsa, despite the fact that it always queried
Numsa=s authority to act on behalf of employees outside the metal
industry.   Not one of the respondents= witnesses gave an inkling
of a negative attitude on the part of Benicon towards Numsa and
Van Rooyen=s evidence of the positive attitude of Benicon was
never disputed.   This factor is relevant, not only as regards
Benicon=s attitude and fairness in respect of the dismissal of its
employees, but also in respect of the events at the tentberaad and
the succeeding days.

(b)
Another vital fact not considered in their judgments by Cameron J
or my brother Farlam, is that Benicon differentiated between the
stay-away on 16 June 1992 (Soweto Day) and the stay-aways on
23 July and 3 and 4 August 1992. Van Rooyen=s uncontradicted
evidence,  was that Benicon understood the importance of Soweto
Day and agreed to a A ... no work, no pay, no discipline ... A regime
for that day.   But the latter stay-aways were of a different kind
altogether.   The stay-away of 23 July took the form of a mass
march to the office of the  Receiver of Revenue at Witbank and to
this day no explanation has been given or even suggested for this
action.   The stay-away on 3 and 4 August was manifestly
politically inspired.   In my view, it was quite proper and
reasonable for Benicon to differentiate between the events of 16
June and those of 23 July and 3 and 4 August.

(c)
Another relevant factor in judging the fairness of the dismissal,
and not mentioned in the judgments of Cameron J and my brother
Farlam, is the remarkably accommodating and supportive attitude
and actions of Benicon towards its employees even in a conflict
situation.Time and again - on Monday, 27 July and on
Wednesday, 5 August - the employees were excused from work to
enable them to go home to prepare for the disciplinary hearing the
next day.   This, surely, is not the attitude of an employer bent on
getting rid of its employees in an unfair manner.

(d)
On 3 and 4 August 63 workers turned up for work.   They had
experienced no intimidation, and, because Benicon had made
provision for transport for all workers, they did not experience
transport problems.  Proper weight should be given to this
uncontradicted evidence.

(e)
A meeting took place on 7 August.  Mr Mashego from Numsa was
present, as were the shop stewards and representatives of
management.   The workers and Mr Mashego did not come
forward with any proposals, but requested Benicon to send its
proposals to the Union for discussion.   After the meeting ended,
Mr van Rooyen faxed a letter to Numsa (still on 7 August),
containing a draft proposed agreement regarding stay-aways/mass
action.  The Union was requested to meet urgently with Benicon
who proposed a meeting for the next day, Saturday, 8 August.
The reason for the urgency was that all Benicon operations had
come to a standstill.   The draft agreement contained proposals
aimed at getting discussions started.  The demand by the union
that Benicon must undertake to guarantee 100% safety for

workers coming to work on stay-away days was not acceptable to
Benicon, because it could not guarantee the safety of the workers
living in the townships.   The demand was also seen by Benicon
as irrelevant, because there had been no violence or intimidation
on 3 and 4 August.   Nevertheless, the Union resolutely persisted
in its demand for 100% security.   It also flatly refused to permit
any workers to turn up for work on stay-away days.

(f)
A further meeting took place on 10 August.   Two union
representatives, Mashego and Ntleko, and all the shop stewards
were present.   The company=s proposal  was to be the starting
point of the negotiations, viz an undertaking by the employees
never to participate in illegal strikes or stay-aways.   Maduna
testified that the employees required 100% security if that was to
be the case.   They also insisted on @  ... no work, no pay, no
discipline... A  Maduna conceded that it was possible that the
Union=s representative, Mr Mashijo, threatened that Numsa would
see to it that Benicon becomes isolated, locally, nationally and
internationally.  He doesn=t remember but does not deny Mr
Mashijo threat to get his Frelimo friends to subvert Benicon=s
contacts in Mozambique.   Neither can he remember Mr  van
Rooyen almost begging them to come to some sort of an
agreement.    This was in fact Van Rooyen=s evidence.   Maduna
agreed that it is possible that at that meeting the workers were
shown letters by Amcoal and Optimum Colliery addressed to
Benicon to show the seriousness of the situation.   He remembers
the Amcoal letter.   He reiterated that there was no proposal by the
Union to work in before or after a stay-away; they proposed 100%
work security.   Absolute deadlock was reached.

(g)
At the same time an offer was made to all workers to re-apply for
employment; those who did apply were appointed.  They signed
the company=s contract containing an undertaking not to
participate in illegal strikes and stay-aways.   Mr van Rooyen=s
evidence that this condition, discussed before and after 10 August
1992 with Numsa representatives, and that it was never described
by the latter as unacceptable was not challenged.

(h)
Benicon was under great pressure from its clients to secure a
continuous flow of coal.   Failure to do so could have dire
consequences for the continued existence of Benicon  - and  the
continued employment of its workers.

[15] It was argued for the respondents and is accepted by my learned brother Farlam that
Benicon should have given the employees a further chance by placing them on final warning.
But it must be remembered that since 16 June 1992 three stay-aways had occurred; that Benicon
could not continue on this basis with its mining operations; that a deadlock on the issue of stay-
aways had occurred; and that there were no practical or feasible proposals coming from the union
or the employees.
[16]        It has been aptly said that it
A ... does not mean that a dismissal cannot be justified whenever it is possible to
point to one or other course which the employer (or both parties) might have
taken, but failed to take.   A stage is reached when fairness dictates that dismissal
is justifiable.   In the course of the negotiations and power-play leading up to that
stage the options and alternatives open to both parties are no doubt numerous and
varied.   The inquiry is not whether one or other course may have been more
successful in resolving the dispute or whether the employer could have endured
the strike for longer; the inquiry is whether in all the circumstances (including, for
example, the duration of the strike and the extent of the measures actually taken

by the parties to resolve the dispute) the dismissal can be said to have been
unfair.@
(Scott JA in National Union of Mineworkers v Black Mountain Mineral Development Co (Pty)
Ltd 1997 (4) SA 51 (SCA) at 61 G - I.)   In my view, such a time had arrived in the present case.
Even if a further written ultimatum had been given, the employees would, under the same
circumstances that prevailed on 23 July 1992 or 3 and 4 August 1992, again have stayed away
without a prior stockpiling.   No evidence was offered that a further warning would have changed
the attitude of the employees.  The evidence suggests the contrary.   The parties had clearly
reached the end of the line.   In this respect, the findings made by my brother Zulman in Duke
and Others v Nasionale Sweiswerke (Pty) Ltd 1998 (3) SA 956 (SCA) at 969 C - I are
particularly apt and applicable to the present appeal.   Dealing with a comparable
matter, he concluded at 969 H - I
AOne must, of course, not lose sight of the important fact that the relevant events
occurred in difficult political times.   However, respondent was not insensitive to
this.   It agreed to absence on 3 and 4 August and took no disciplinary steps in
regard to absence on 6 and 7 August.   Bearing in mind that the required value
judgment in such cases seeks to achieve fairness to both sides, it could hardly
have been expected of respondent to continue indefinitely accepting the burden of
mass absence or mass demonstration whenever political motives came to the
fore.@

A similar approach was followed by this Court in the judgment of my Nienaber JA
(concurred in by Marais JA and Zulman JA) in National Union of Metalworkers of SA v Vetsak
Co-operative Ltd and Others 1996 (4) SA 562 (A) at 602 A - B
AVetsak could not know, at the time of making the decisions to issue and
implement the ultimatum, for how long it would find itself either without any
labour or with only >scab= labour.   Such labour can generate its own peculiar set
of disruptive problems.   It seems to me that if the initial decision to issue an
ultimatum was fair in all the circumstances, as I think was in this case, an
employer cannot be criticised, if his employees remain recalcitrant, from

implementing it.   And that, unpalatable as it may be to them, is a consequence of
their own conduct which employees must be prepared to face.  A

In my view the appeal should succeed with costs. The court a quo=s order should be
amended to read AAppeal dismissed with costs@.

__________________
PJJ OLIVIER JA

Concurred:
Hefer JA