Case  CCT 367/24
[2026] ZACC 22

Hearing Date:  30 SEptember 2025

 Judgement Date: 29 May 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 29 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Labour Appeal Court. The application concerns the interpretation of section 189A(7)(b)(ii) of the Labour Relations Act (the Act). The crux of the matter is whether section 189A(7)(b)(ii), read with section 191(11), of the Act gives the Labour Court jurisdiction to adjudicate over unfair dismissals occasioned by operational requirements, without the dispute having to first be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a council, when parties have already undergone a failed facilitation process..

The first applicant is the National Union of Metalworkers of South Africa (NUMSA). The second to seventh applicants are members of NUMSA, namely: Bhekabantu Mjweni, Patrick Ndlovu, Trevor Ntuli, Mbongeleni D Dlamini, Deon van der Byl and Norman Thwala (collectively, together with NUMSA, referred to as the applicants). The respondent is Industrial Oleo Chemical Products, a business of AECI Chemicals and the employer of the NUMSA members.

In early 2020, the respondent retrenched the applicants for operational reasons under section 189A of the Act, resulting in their dismissal in July 2020. The applicants successfully challenged the process on an urgent basis under section 189A(13) and argued that the facilitation meetings had predetermined the dismissals and denied them an opportunity to make representations. They were reinstated and a fresh consultation process was conducted, but they were ultimately dismissed again on 12 November 2020.

Following the applicants’ dismissal, the applicants referred the dispute to the Labour Court in terms of section 189A(7)(b)(ii) of the Act. The respondent then raised a preliminary issue, submitting that the applicants were required to first refer the unfair dismissal dispute to the CCMA or a council before they could approach the Labour Court. Simply put, the respondent contended that the applicants could not bypass the CCMA or a council and directly approach the Labour Court. According to the respondent, this meant that the Labour Court lacked jurisdiction to determine the matter, without conciliation first taking place.

The Labour Court dismissed the respondent’s preliminary point based on, amongst others, its interpretation of section 189A(8) of the Act. According to the Labour Court’s reasoning, the Act does not require that a dispute first be referred for conciliation in the manner that section 189A(8) does, and that it is not necessary to refer a dispute to conciliation once a facilitation process in terms of section 189A of the Act has already taken place. If conciliation was required, so the Labour Court reasoned, the Act would have prescribed that a dispute be referred to the Labour Court in terms of section 191(1) and not in terms of section 191(11) of the Act.

The Labour Appeal Court found differently. It held that a referral to the CCMA is mandatory after the failure of a facilitation process. The Labour Appeal Court found that there is a functional distinction between facilitation and conciliation. It relied on its findings in National Union of Metalworkers of South Africa on behalf of Members v SAA Technical SOC Ltd and held that a “dismissal is… a fresh dispute… from the ‘consultation’ causa”.

In this Court, the applicants submitted that this Court’s jurisdiction is engaged as the issue raises a constitutional matter, as envisaged under section 167(3)(b)(i) of the Constitution, because it concerns the right to fair labour practices under section 23(1) of the Constitution and the right of access to courts under section 34 of the Constitution. It further submitted that this Court’s jurisdiction is engaged because it raises arguable points of law of general public importance, as envisaged under section 167(3)(b)(i) of the Constitution, as the Act’s provisions have been interpreted differently in two previous judgments of the Labour Court. Therefore, this Court was required to provide clarity on the issue

The applicants contended that the issue turns on the interpretation of section 189A(7)(b)(ii) read with section 191(11) of the Act. On the applicants’ interpretation of these two sections, parties to a failed facilitation process do not need to first refer the dispute to conciliation before they can approach the Labour Court.

The respondent conceded that this matter engages this Court’s jurisdiction, but argued that leave to appeal should be refused as the appeal does not enjoy prospects of success. The respondent based this assertion on the fact that the Labour Appeal Court has twice rejected the applicants’ argument and that this Court in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd endorsed the principle stated by the Labour Appeal Court that conciliation is a precondition to the Labour Court’s jurisdiction. The respondent submitted that section 189A(7) is no exception to this principle.

The respondent argued that facilitation and conciliation are fundamentally different processes. It highlighted differences in the timing of appointment, the facilitator’s role and the nature of the consultation, contending that facilitation does not involve proper consultation. The respondent further argued that facilitation protects the parties’ interests and reduces litigation costs, noting that conciliation is a swift 30-day process, unlike Labour Court adjudication of dismissal disputes.

The applicants conceded that there is a difference between the roles of facilitation and conciliation but maintained that this is not a decisive factor in the present enquiry. They submitted that facilitation, and the engagement entailed by it, should be held to be sufficient in the context of a dismissal post-facilitation.

The first judgment, penned by Tshiqi J (with Kollapen J, Mathopo J, Mhlantla J and Rogers J concurring), found that the matter engages both legs of this Court’s jurisdiction under section 167(3)(b)(i) and (ii) of the Constitution. Consequently, leave to appeal was granted.

Turning to the interpretation of section 189A(7)(b)(ii) of the Act, the first judgment applied the principles of statutory interpretation authoritatively set out in Endumeni and Regenesys. It found that section 189A was introduced to achieve substantive and procedural fairness in large-scale retrenchments, and that section 189A(7)(b)(ii) in particular was aimed at adjudicating disputes at an earlier stage of the process, with urgency.

The first judgment found that facilitation occurs before dismissal during retrenchment consultations, while conciliation takes place after dismissal. It further held that facilitation is pre-emptive and consultative, whereas conciliation is reactive and remedial. In the context of section 189A(7)(b)(ii), the first judgment found that the Legislature specifically referred to “the Labour Court” and cross referenced section 191(11), not section 191(5). It therefore did away with the conciliation requirement in the context of section 189A(7)(b)(ii) proceedings.

For these reasons, the first judgment found that the decision of the Labour Appeal Court must be set aside and the order of the Labour Court reinstated. The first judgment also found that the matter should be remitted to the Labour Court to decide the merits of the applicants’ case.

The second judgment penned by Theron J (with Maya CJ, Majiedt J and Musi AJ concurring), agreed with the first judgment on jurisdiction and the granting of leave to appeal. However, it found that a dispute must first be referred to conciliation before it can be referred to the Labour Court.

The second judgment arrived at this conclusion by finding that section 189A(7)(b)(ii) directs that referral to conciliation must occur pursuant to another provision, namely, section 191(11) of the Act. Examining the text, the second judgment found that the plain meaning of section 189A(7)(b)(ii) contemplates not only a referral to the Labour Court, but also that the referral must occur “in terms of section 191(11)” as a whole. The second judgment further held that the applicants’ interpretation was unsupported by the text because it required the reader to ignore substantial portions of section 191(11), including the reference to section 191(5)(b) and the requirement that the dispute be certified as unresolved, despite there being no referral to conciliation on the applicants’ approach.

Turning to the context of the provision, the second judgment held that the distinction between paragraphs 189A(7)(b)(i) and (ii) is rational because requiring conciliation before a strike would “kneecap” employees essentially serving out their notice periods, whereas the same considerations do not apply to referral of disputes to the Labour Court. The second judgment therefore found that a requirement of a prior referral to conciliation does not render the remedy of a referral to the Labour Court nugatory, as contended by the applicants. It merely adds an antecedent step, and one with a particular purpose.

The second judgment also found that there is a qualitative difference between pre-dismissal facilitation and post-dismissal conciliation. The second judgment concluded that on a proper consideration of the text of section 189A(7)(b)(ii), read in context and having regard to its purpose, the text clearly favours the interpretation that section 189A(7)(b)(ii) requires a referral for conciliation prior to a referral of an unfair dismissal dispute to the Labour Court, a view endorsed by the Labour Appeal Court. The second judgment would have therefore dismissed the appeal.

By a majority, this Court set aside the decision of the Labour Appeal Court and reinstated the order of the Labour Court, remitting the matter to the Labour Court to decide the merits of the case.

On the issue of costs, the majority judgment borrowed from this Court’s decision in Zungu to find that there was no order as to costs.

The Full judgment  here