AFADWU obo Members v Hamman & another [2026] ZALCCT 189

Date of Judgment & Seat of Court: 6 November 2026, Labour Court, Cape Town

Case No: 2026/232698

Name of Judge(s): May AJ

Summary of Factual Matrix:

Following the Premier Group's acquisition of RFG Holdings and the section 197 transfer of RFG Foods' employees to the second respondent, the second respondent issued section 189(3) notices, read with section 189A, in respect of its Tulbagh fruit products operation and requested CCMA facilitation. Over four facilitation meetings the consulting parties, including the applicant union, negotiated voluntary severance packages (VSPs); all but one of the applicant's 107 members, and virtually all other affected employees, signed VSPs.

The applicant brought an urgent application for a rule nisi declaring the retrenchment process unfair, halting the VSPs, allowing members who had signed them to return to work, and interdicting the implementation of the section 189 process. It contended that the second respondent had failed to engage meaningfully because it ignored a potential investor or buyer of the business as a going concern. The respondents raised misjoinder, non-joinder, lack of urgency and want of a jurisdictional basis.

Summary of Findings:

[14] ‘At the hearing of the matter, Mr Seloga, appearing for the Applicants, conceded that no case is made out against the first respondent and that the relief is sought against the second respondent only. The concession is correctly made.’

[15] ‘In essence therefore the Applicant could only seek to interfere in the signed VSP’s, if they can at all, concluded by their own members. this concession means it is unnecessary for the Court to determine the non-joinder objection raised by the second respondent.’

[17] ‘It is trite that whether a matter is urgent involves two considerations, whether, in terms of Rule 38, the reasons for urgency and why urgent relief is necessary has been set out and whether the Applicant will not obtain substantial relief at a later stage. The consideration requires an application to explain that unless relief is granted as a matter of urgency, something is likely to happen, the possible prejudice to the parties, that urgency was not self-created and that the applicant acted expeditiously[1].’

[18] ‘Section 189A (13) empowers a consulting party to approach the Labour Court for an order compelling the employer to comply with a fair procedure, interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure or directing the employer to reinstate an employee until it has complied with a fair procedure[2]. Such an application is sui generis and is accorded a degree of urgency.[3] The relief is usually sought in the form of a pre-emptive interdict. The aim of section 189A (13) is to provide a remedy to employees to approach the Labour Court to set their employer on the right track where there is a genuine and clear-cut procedural unfairness which goes to the core of the process. The section is aimed at securing the process in the interest of a fair outcome[4].’

[19] ‘It would be inappropriate to afford an Applicant the remedies set out in section 189A(13)(a)-(c) if they delayed unduly between the occurrence of the alleged procedural flaw or if the flaw is formal or insignificant or if the relief is sought after the retrenchment process is completed. This is so because procedural flaws must be corrected early and effectively to allow the parties to continue with the consultation process, with the possibility of the flaws being corrected and consensus being reached[5].’

[21] ‘The application was thereafter delivered on 18 September 2026 and filed on 21 September 2026. The Applicants have therefore not unduly delayed the Application at all, and it would therefore be appropriate to afford the Applicants the remedies under Section 189A (13) provided a proper case is made out for the relief sought.’

[22] ‘Jurisdiction is determined on the basis of the pleadings and not on the substantive merits of the case. The Applicants’ pleadings should contain the legal basis of the claim under which the Applicants have chosen to invoke the Court’s competence. The Court must interpret the formal terminology of the notice of motion, the contents of the supporting affidavits to establish what the legal basis of the Applicants’ claim is.[6]’

[24] ‘It is apparent from the Applicants’ Notice of Motion and Supporting Affidavits that they seek intervention in pending retrenchment proceedings that is subject to facilitation in terms of section 189A. A pleading should not be read pedantically, nor should a court overemphasise precise formalistic requirements – it is the substance of the allegations that should properly be considered[8]. On this basis it is obvious that the Applicants’ relief is premised on Section 189A (13).’

[25] ‘The Applicants allege that the second respondent is not engaged in meaningful discussions with them in their failure to consider the potential investor/ buyer. This falls within the purview of section 189A (13) if established. This Court’s jurisdiction is therefore engaged.’

[26] ‘The Applicants relief hinges on a finding that the second respondent has not complied with a fair procedure[9]. On the facts, there is nothing that supports this contention at all. In fact, the contrary seems true.’

[28] ‘In SAA[10], Van Niekerk J confirmed that nothing prevents an employer from offering a voluntary severance package as a measure to avoid retrenchment and that if a VSP is offered and accepted as a means to avoid the need for or even contemplate retrenchment, the contract of employment is terminated by mutual agreement and there is no dismissal.’

[29] ‘The offering of the VSP’s does therefore not make the process unfair at all. On the evidence before the Court, it is apparent that there was meaningful consultation duly facilitated by the CCMA commissioner that culminated in a negotiated agreement to offer the VSP’s on the terms agreed upon.’

[30] ‘The second respondent has therefore complied with a fair procedure. This finding in and of itself non-suits the Applicant.’

[31] ‘The Applicants have not put up any evidence to suggest that the VSP’s were not entered into freely and voluntarily. […] I agree.’

[32] ‘The Applicants have not satisfied this Court that interference is warranted on the facts. The facts, on the contrary, show a fair, facilitated process undertaken which culminated in VSP’s on agreed upon terms.’

[33] ‘The Applicants’ remaining member is not without relief, the facilitation process continues and he therefore has the possibility of challenging a dismissal as being either procedurally or substantively unfair subsequently.’

[34] ‘Absent a finding of procedural unfairness, which is necessary for this Court to intervene, it is unnecessary for this Court to determine whether the grounds for an interim interdict have been met.’

[35] ‘It follows therefore that the application must be dismissed.’

[36] ‘This Court has a broad discretion to make orders for costs according to the requirements of the law and fairness. The Court must strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and allowing matters to be brought or be opposed that should not have been brought or opposed in the first place.’

[37] ‘The Applicants approached this Court in good faith seeking to protect the rights of its members. They were not successful this time around, but they should not be discouraged from approaching this Court when they have a deserving case to do so. Each party should therefore pay their own costs.’

Relief: The urgent application under section 189A(13) of the LRA was dismissed, each party to pay its own costs.

Judgment on SAFLII