The General Court then examined the constitutional attack on Article 23(1)(d). He extrapolated the substance of the AMCU`s challenge to the application of the majority principle, which is recurrent in the LRA (pars. 42-43). AMCU argued that the principles set out in Article 23(1)(d) violated the right to strike and the right to freedom of association. According to Zondo JP as it was at the time, Cameron J, in Kem-Lin Fashions CC v Brunton  ZALAC 25, stated that the legislature had made a political decision and that this choice was that the will of the majority must prevail and that the LRA had many provisions that illustrate this political position (para. 43). This was done to promote orderly and productive collective bargaining. § 23, paragraph 1 (d), strengthens the power of the majority trade union in the workplace (para. 44). Admittedly, the codification of the majority principle in Article 23, paragraph 1 (d), limits the right to strike. However, such a restriction is appropriate and justified in view of the purpose of the restriction; the fact that the restriction applies only to the duration of the contract and that it limits the rights for certain matters, namely wages and conditions of service (Pars 50 & 58). The Tribunal also noted that the majority principle was recognized by the Tribunal in TAWUSA v PUTCO Ltd  ZACC 7 (CC), in which Khampepe J stated that majority thinking under Section 32 will only apply after a collective agreement has been reached and the majority has attempted to extend it (paragraph 57).
The same applies to an extension under Article 23(1)(d). The AMCU`s assertion that the extension was contrary to the rule of law was also rejected by the General Court (paras. 82-87). This document contributes to the literature on collective bargaining by providing new knowledge on the causal effects of extensions. More specifically, this document analyses the impact of administrative renewals of collective agreements on employment in related and unrelated enterprises. It is important that it indicates the extent to which concerns about representativeness are justified in practice. Our paper also refers to a broader literature on the role of firms in explaining wage inequality and the opposing perspectives between countries, possibly based on their evolving collective bargaining models (Card et al., 2013; Devicienti et al., 2019). The AMCU argued that each mine and each operation is a separate `workplace` within the meaning of Article 23(1)(d) and that the collective agreement does not extend to undertakings where it has a majority and is therefore entitled to strike in those mines or operations.
It argued that the forum in which the agreement was concluded acts as a negotiating board, although it is not recognised or registered as such, so that an extension of the agreement, if any, must be effected within the meaning of Article 32 of the LRA. Section 32 provides that the Minister of Labour may extend a collective agreement entered into within a collective council, provided that the unions and majority employers participating in the agreement vote in favour of such an extension. AMCU therefore argues that the board in fact circumvented the requirements of Article 32. In the alternative, AMCU opposes the constitutionality of Article 23(1)(d) in so far as it unduly restricts the right to strike, collective bargaining and freedom of association. Finally, the union argued that the extension of section 23 was contrary to the rule of law, given that it constitutes the exercise of public authority without oversight or recourse in the event of abuse of that power and that the private actors exercising that power are not bound by the obligations of public administration and the public interest set out in Article 195 of the Constitution. . . .