National Union of Mineworkers v Thungela Operational (Pty) Ltd [2026] ZALCPE 6

Court: Labour Court of South Africa, Port Elizabeth

Judge: Lallie J

Date of Delivery: 10 February 2026

Factual Matrix

Thungela Operations contemplated retrenching employees from its Goedehoop and Isibonelo collieries. During consultation under section 189A of the LRA, the employer undertook to place certain employees in care and maintenance and reclamation structures. Appointment letters were issued in August 2025. In November 2025, the employer cancelled these undertakings, and the affected employees (including the individual applicants) were included in the retrenchment pool. Retrenchment notices were issued on 3 December 2025. NUM launched a section 189A(13) application on 23 January 2026 (21 days late), seeking reinstatement pending fair consultation.

Reasoning for the Finding

"[6] The delay is about 3 weeks. The respondent submitted that in light of the purpose the provisions of section 189A(13) were intended to serve, the 3 weeks' delay is excessive because section 189A(13) is primarily designed to bring parties back on track so that the consulting parties can ensure the procedural fairness a retrenchment exercise." [para 6]

"[10] I must accept the respondent's argument that the doctrine of election applies in employment matters. The applicant was at all relevant times aware of its statutory obligation to bring the application within 30 days from 3 December 2025...It deliberately chose to pursue its efforts to reach a settlement of the dispute with the respondent over bringing the section 189A(13) application. The applicant's decision has consequences. One of them is that the prescribed time for bringing the application expired." [para 10]

"[14] A reading of section 189A(13) reveals that the range of relief it provides for is directly related to the stage of the consultation process...The applicant seeks the relief in section 189A(13)(c) which is available to employees who have been dismissed...Time is of the essence when the right in section 189A(13) of the LRA is exercised. In the absence of a reasonable explanation for the delay the applicant has no reasonable prospects to be reinstated so that the consultation process can be revived." [para 14]

"[15] I accept the respondent's submission that it will suffer more prejudice than the applicant should this application be granted because the individual applicants have been dismissed because their jobs no longer exist. There are therefore no jobs to reinstate them in." [para 15]

"[16] As stated in Grootboom v NPA(supra) condonation cannot be had for the mere asking. The applicant did not make out a case entitling it to have its non-compliance with the provisions of a statute condoned." [para 16]

Finding/Order

1. The application for condonation of the late filing was dismissed.

2. The section 189A(13) application was not properly before court.

3. No order as to costs.

The Court held that the applicant failed to show good cause for condonation, having deliberately elected to pursue settlement negotiations over timely litigation, and that in any event, the relief sought (reinstatement to revive consultation) was no longer attainable.