Balancing majoritarianism and the right to consultation: Association of Mineworkers and Constitutional Union and Others v Royal Bafokeng Platinum Limited and Others

This case note illustrates how mining companies operating in South Africa often resort to retrenchments to bring operational costs under control. Processes leading to such retrenchments are statutorily required by section 189 of the Labour Relations Act to include consultations, principally with trade unions that are part of collective agreements. As evidenced by the analysis of the Association of Mine Workers and Construction Union and others v Royal Bafokeng Platinum Limited and Others, the said statutory requirement is problematic and divisive as even the Constitutional Court became very divided as to whether the provision regulating retrenchment processes is constitutionally valid. With a slim majority of judges finding the provision constitutional, this case note highlights reasons why such division must be addressed in the interest of affected employees excluded from retrenchment negotiations.