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Benicon Group v National Union of Metal Workers of South Africa and Others (2) (622/97) [1999] ZASCA 79 (1 October 1999)

IN THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Case Number : 622 / 97



In the matter between :

THE BENICON GROUP Appellant


and


NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA

AND 185 OTHERS Respondents

CORAM : Hefer, Olivier, Zulman JJA; Farlam and Madlanga AJJA



DATE OF HEARING : 3 September 1999

DATE OF JUDGMENT : 1 October 1999

JUDGMENT

OLIVIER JA

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:

1 There was confusion, both in reality and in the workers’ minds, about the consistency and rigour of management’s policy on stay-aways.
2 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.
3 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.

4 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:

“RE : 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 :

“VERY IMPORTANT NOTICE!!!

The following steps will be taken against persons not at work on the 3^rd of August 1992.

 NO WORK NO PAY

 NORMAL BONUS PENALISATION PROCEDURE

 Persons not at work on the 4^th 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 “hundred 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 :

“The 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,

“[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 :

“Is 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 :

“To 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 “liaison 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 “ ... no work, no pay, no discipline ... “ 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... “ 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

“ ... 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

“One 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

“Vetsak 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. “

In my view the appeal should succeed with costs. The court a quo’s order should be amended to read “Appeal dismissed with costs”.

__________________

PJJ OLIVIER JA

Concurred:
Hefer JA