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Strike related misconduct represents a “blight that has come to characterize the South African Industrial Relations landscape” with the Labour Courts being inundated with “applications by employers seeking to interdict and stop unlawful conduct, violence and intimidation in the course of protected strike action”.[1] Indeed, an unfortunate reality that many employers in South Africa are faced with today is the very real possibility that strike action, albeit protected, may be marred by unlawful conduct such as violence, intimidation and damage to property.

In the recent case of CSAAWU and Others v Oak Valley Estates [2022] ZACC 7, the Constitutional Court (“CC”) held that employers who are seeking to interdict employees (who are engaged in a protected strike) from acts of violence, intimidation and damage to property, must, as far as possible, identify the specific employees who are engaged in such unlawful conduct.

In May 2019, Oak Valley Estates approached the Labour Court for an interim interdict against CSAAWU (Commercial Stevedoring Agricultural and Allied Workers Union), some 364 employees as well as unidentifiable members of the public who associated themselves with the striking employees. The Labour Court granted interim relief as acts of violence, intimidation and damage to property had been committed during the strike.

When the time came for the granting of final relief, Oak Valley abandoned its case against 191 employees who were no longer on strike and sought relief only against CSAAWU, the unidentified members of the public and the employees who remained on strike. CSAAWU argued that there was no evidence linking the unlawful conduct to the individual employees against whom relief was sought. The Labour Court rejected CSAAWU’s argument and granted final relief against CSAAWU and the employees who remained on strike. The Order excluded the unidentified members of the public.

The Labour Appeal Court (“LAC”) upheld the Labour Court’s decision and held that it was “a bridge too far” to require an employer to identify the employees engaged in the unlawful conduct from amongst a group of persons.

The matter came before the CC and the question which the CC was faced with was whether an employer seeking final relief must establish a factual link between the striking employees and the unlawful conduct.

The CC rejected the LAC’s approach and held that in order to interdict striking employees for unlawful conduct committed during a protected strike, an employer must be able to link the employees to the actual or threatened unlawful conduct in question.

The CC, in making its determination, relied on the following principles:

  • The fact that employees participate in a strike, protest or assembly in which there is unlawful conduct is insufficient to link them to such unlawful conduct. To hold otherwise would result in employees, who are innocent of the unlawful conduct being interdicted, which impinges on a person’s Constitutional rights; and
  • The necessary link can, however, be established in circumstances where the protestors or strikers commit the unlawful conduct as a cohesive group.[2]

The CC has made it clear that a final interdict may only be granted against specific employees, or groups of persons, who can be clearly linked to the unlawful conduct and/or harm committed during a protected strike. This places a weighty evidential burden on employers to gather the requisite evidence when facing strike action.

Whilst the judgment was in the context of final interdicts, the decision may result in the Labour Court adopting a narrower approach in the context of interim interdicts.

[1] CSAAWU and Others v Oak Valley Estates and Another [2022] ZACC 7.

[2] At para 42.

Should you require any more information, please contact Melanie Hart at melanie@bv-inc.co.za.