In terms of the Section 23(2) of the Constitution of the Republic of South Africa, 1996 –“(2) Every worker has the right to - …strike”.
In an authoritative publication by Professor John Grogan “Collective Labour Law”, Juta (2010), at 12 to 13, the learned author observes that the extent to which labor rights have been entrenched in the South African Constitution is probably unique in that it reflects the drafter’s determination to avoid a repetition of the abuse to which trade unions were subjected to in the apartheid era.
It can be submitted that the SA Constitutional “right to strike” is one, if not the most important right, from a trade union perspective, chiseled in the SA Constitution and it is jealously protected by the SA trade union federations and its constituent members. After all, it took much effort and resolve by the SA trade union movement to secure a fundamental “right to strike” as an entrenched right in the SA Constitution.
However, and according to Grogan supra, Section 23 of the Constitution is even handed: “it confers on ‘everyone’ (including employers) ‘a right to fair labour practices’ and, leaving aside the right to strike, confers identical rights on trade unions and employers’ organizations. [Emphasis added].
Therefore, the right to strike should not be perceived as sacrosanct and necessarily as if of more significance or value, when compared or weighed with any of the other fundamental rights entrenched in the South African Constitution.
At this juncture it was deemed apposite to record the words of Samuel Taylor Coleridge (1772-1834), “There are no rights whatever…without corresponding duties.” [Samuel Taylor Coleridge, English poet and man of letters; Ottery St. Mary, Devonshire; one of the most brilliant, versatile, and influential figures in the English romantic movement].
Recent concerns around labour relations in South Africa have to a large extent focused attention on a significant increase in lengthy strike action; and especially the escalation in levels of unlawful conduct by strikers in the form of violence, intimidation, riotous behaviour that led to damage of property and all sorts of direct and indirect financial prejudice suffered by those affected as a consequence thereof.
Section 69(1) of the Labour Relations Act 66 of 1995 (the LRA) gives registered trade unions the right to authorise their members and supporters to picket “for the purposes of peacefully demonstrating” in support of protected strikes and against any lockout. Such demonstrations are invariably part and parcel of South African strikes, as they are in many other countries.
However and unfortunately so, in South Africa in particular, demonstrations by strikers often go far beyond conduct normally associated with picketing. Regrettably, industrial action frequently deteriorates into mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal acts.
In most cases, the public generally bears these antics, if not with a grin, then at least with the hope that they need endure them only until the strikers eventually lose their steam and the situation returns to normal, at least until the next labour flare-up. [See: John Grogan “Tone it down! Curbing union exuberance” Employment Law Journal, LexisNexis (December 2011)].
In the article by Grogan supra the learned author analysed and commented upon a judgment, that attracted much attention in the press, namely by the South African Supreme Court of Appeal (SCA) - South African Transport and Allied Workers Union v Garvis & others  12 BLLR 1151 (SCA).
The following passage[s] in Garvis was referred to in articles pertaining to a legal battle between a trade union SATAWU and a few Cape Town street vendors who claimed damages for losses suffered in 2006 during a riot by union members that worked itself up through the High Court, the SCA and, finally, the South African Constitutional Court:
“ During the pre-constitutional era, public protests and demonstrations against a denial of fundamental human rights were often met by brute force with resultant loss of life. The Sharpeville massacre and the 1976 Soweto student uprising are stark examples that are etched into the national psyche. In any event, the legislature, after an extensive consultative process, and following on the brutal experiences of the apartheid era, promulgated the Regulation of Gatherings Act 205 of 1993.
 Our Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and the advancement of human rights and freedoms. It is calculated to ensure accountability, responsiveness and openness. Public demonstrations and marches are a regular feature of present day South Africa…The Constitutional Court has recognised that the rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organisations…Trade unions should ensure that a noble struggle remains unsullied. The Act was designed to ensure that public protests and demonstrations are confined within legally recognised limits with due regard for the rights of others.
…The chilling effect that the provisions of the [Regulation of Gatherings Act] (RGA) should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob”. [Emphasis added].
In South African Transport and Allied Workers Union and another v Garvas and others (City of Cape Town as Intervening Party and Freedom of Expression Institute as amicus curiae)  10 BLLR 959 (CC) the Court determined that Section 11(2) of the RGA did limit the right to assemble in terms of Section 17 of the Constitution, however, the limitation was reasonable and justifiable.
The victims of the violence that erupted after the SA Transport & Allied Workers Union convened a gathering in Cape Town, as part of the union’s effort to mobilise members during a strike in the transport industry could institute damages claims in the High Court against the union in terms of Section 11(2) of the RGA. The Court held that Section 11(2) of the RGA was not unconstitutional. Section 17 of the Constitution protects the right to assemble and demonstrate only insofar as the conduct of the protestors was peaceful and the participants unarmed.
Somewhat ironically, shortly after the Constitutional Court handed down the Garvis judgment, during August 2012, the Marikana Tragedy occurred, an event which has been described as a watershed event for the South African labour relations system.
The nature of the events that occurred at Marikana had been widely published in the media in SA and abroad. In short: pursuant to strike action by a trade union active at the Lonmin platinum mine scores of Lonmin workers were gunned down by police during unprotected strike action. The issues that precipitated the tragedy were incredibly complex and go way beyond the field of labour relations.
Suffice it to record the observations by some commentators as to the root causes of strike action in SA, not only with reference to lengthy strike in the mining sector, also the strike action that followed thereafter in the metal and engineering industry.
In an article by a senior journalist of a leading SA newspaper, Jan de Lange 'The resolution of the strike in the hands of Government' Rapport 2014/07/20, the observation was made 'we really need to look beyond production losses and even violence at the drivers of these strikes'. http://t.co/QhM018jr3N
In the article referred to above De Lange expressed an opinion that the underlying factors that caused the strike in the metal & engineering industry are in substance the same or similar factors or 'drivers' that caused a lengthy strike [5 months] in the mining sector. The strike was correctly labeled as a 'political strike'.
Notwithstanding the labeling of the strike and according to Professor Karl von Holdt, a professor in Sociology at the University of the Witwatersrand (WITS) the root cause of the wave of strikes in SA is not primarily due to political aspirations of trade union leaders.
According to Professor Von Holdt the real reasons are socio-political and other concerns or issues such as the lack of access to basic amenities and housing. The increase in violence and other forms of unlawful conduct during strikes are symptomatic of increasing levels of frustration and anger in that a large sector of the SA population live in what is known as 'informal settlements' with no service delivery and without access to basic amenities.
Therefore, the socio-economic needs of a substantial number of SA citizens remained unfulfilled despite political reform.
It follows that South African employers are not in a position to remedy the situation and find them in the unenviable position of being in the midst of socio-economic cum political conflict that culminated in industrial strife.
Having regard to a number of orders handed down by the South African Labour Courts, it is very much apparent that the protest action resorted to, and favored by some strikers ever so often takes the form of mass mayhem bordering on anarchy, sometimes accompanied by murder, assault, intimidation, arson, industrial sabotage, disruption of public services, littering and other criminal Acts. [See: article by Grogan supra].
The court orders referred to above were obtained out of necessity and on an urgent basis by employers in an attempt to curb strike violence, damage to property as well as other criminal acts committed by strikers in contravention of the Regulation of Gatherings Act 205 of 1993 and agreed picketing rules with the unions involved.
An alarming trend that developed is the non-compliance and contempt of court orders by strikers. Unfortunately the incidence of non-compliance and contempt of court orders emanate from the ‘Apartheid-Era’ where workers paid scant regard to interdicts or any other order of court based on political reasons as a form of protest and civil disobedience.
This notwithstanding, the ‘Apartheid-Era’ is long gone and buried – twenty or more years ago. The resurgence of contempt of court, the propensity to disregard the rule law and the reasons therefore could not by means of regression be labelled as a “problem inherited from apartheid - a ‘spawn’ of the ‘wicked’ regime in power at the time”. As a Law Professor once said to a student who arrived late for class and presented a flimsy excuse for being late, “Dear sir…that kite won’t fly”.
The tendency by strikers to disregard the rule of law and heedlessly act in contempt of court orders are a matter of great concern to the courts, the legislator and the South African public. At the fifteenth annual general meeting held by the South African Society for Labour Law (SASLAW), where Mr Justice Andre van Niekerk delivered the key note address the Judge observed, ‘The value and effectiveness of legal institutions is dependent entirely on an acknowledgment and commitment to the rule of law.
When citizens or a group of citizens decide that their interests are better advanced by flouting the law, then there is very little to say about the role and perspectives of courts… the basic foundation of law is present when citizens are concerned about maintaining the integrity of the legal system, while recognising the inevitability of conflict… When this is not present, and when citizens reject the law as a means of settling normative conflict, then the social good of the law, which includes its capacity to provide a framework of cooperation despite disagreement, disintegrates.’
Judge van Niekerk also referred to the role of the court in unprotected strikes and specifically commented on urgent applications to interdict acts of strike related violence.
In this regard, he said: ‘The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them. At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’ [Emphasis added].
At a seminar held at the University of Pretoria, on 28 October 2014, presented by SASLAW the key note speaker was Advocate Anton Myburgh SC with the seminar topic, “Ensure compliance and contempt of court orders: a viable means to control strike violence?”
[Advocate Myburgh SC also authored a comprehensive article on the subject matter addressed at the SASLAW seminar, published in the authoritative publication Contemporary Labour Law – Anton Myburgh SC, “Contempt of court in the context of strikes and violence” Contemporary Labour Law (July 2014) Volume 23 No. 12].
In the comments that follow hereunder referral would interchangeably be made to the published article supra by Myburgh SC, as well as some of the issues raised and observations made at the SASLAW seminar.
CONTEMPT OF COURT IN THE CONTEXT OF STRIKES AND VIOLENCE – RECENT JUDGMENTS BY THE LABOR COURTS
At the outset it should be noted that one could not submit a quasi academic article or posting as to the subject matter under discussion, in the first instance due to the legal complexity thereof, and in the second instance postings on the LinkedIn network should preferably be brief and not drafted as a law review.
Four notable judgments by the Labour Courts were dissected by Myburgh SC and the importance of the judgments; especially the ‘message therein recorded’, if not an admonition by the courts as to what could be expected by maverick parties who fail to comply with orders of court, in the context of violent or riotous behaviour, who persist with unlawful conduct under the guise of strike action, albeit unprotected or protected strike action.
Also noteworthy in the judgments are the real possibility that those who blatantly disregard court orders would be ‘corrected’ by means of a quasi-criminal sanction, to wit to be found in contempt of court. One well known example is a judgment by the Labour Court where the court imposed a fine of R 500.000 against a union for contempt, namely In2Food (Pty) Ltd v Food & Allied Workers Union & Others (2013) 34 ILJ 2589 (LC). On appeal to the Labour Appeal Court (LAC) the union succeeded, on a technical point, as to the wording of the order wherein the union was interdicted and restrained from “continuing” with the strike and access prevented to the company premises by persons not involved in the strike, referred to by some commentators as ‘strike sympathisers’ or ‘self appointed moral supporters’ or even ‘concerned community members’ (CCM’s).
Of importance is a key passage by the court a quo in the In2Food judgment, which the LAC amplified, endorsed and adapted - quoted hereunder where Steenkamp J (at 2591H-2592B) pronounced:
““The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members...[The LRA] makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right. However, that right is not without limitations. Firstly, the proper procedures set out in s 64 of the LRA should be followed. And secondly, it must be in line with the constitutional right to assemble and to picket peacefully and unarmed, as entrenched in s 17 of the Bill of Rights... Very simply, there is no justification for the type of violent action
that the respondents have engaged in, in this instance. And alarmingly, on the evidence before me, the union and its officials have not taken sufficient steps to dissuade and prevent their members from continuing with their violent and unlawful actions... These actions undermine the very essence of disciplined collective bargaining and the very substructure of our labour relations regime.” [See detailed discussion: Myburgh SC - Contemporary Labour Law, 110 to 113 supra].
Of significance is that the LAC in In2food referred to FAWU v Ngcobo NO & Another (2013) 34 ILJ 3061 (CC), where FAWU was held liable to its own members for failure to prosecute the members’ interests properly in litigation (at paras 18-19):
“The respondent’s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions are beginning to gain recognition… The sentiments expressed by the court a quo
which are cited above [see Steenkamp J, above] have been rightly described by Alan Rycroft as a ‘…’significant moment of judicial resolve’. Indeed, the sentiments deserve endorsement, and are adopted by this Court.”
[See: Rycroft, A “Being held in Contempt for Non-compliance with a Court Interdict: In2food (Pty) Ltd v FAWU & Others” (2013) 34 ILJ 2589 (LC)” 2013 34 ILJ 2499].
Referral was made to three other important judgments handed down by the courts where the courts had to pronounce on the question whether the Respondent was in contempt of court pursuant to an interim order obtained against unruly strikers ad factum praestandum and upon non-compliance with the order, an ensuing application declaring the non-compliant party[s] in contempt of court and imposing of a sanction.
For the sake of brevity the three judgments would not be addressed in this posting, however, they would be cited for those who wish to peruse them. They are Xstrata SA (Pty) Ltd v AMCU & Others (case no. J1239/13, 25/2/2014, per Tlhotlhalemaje AJ, Ciro Beverage Solutions (Pty) Ltd v SATAWU & Others (case no. J2630/13, per Shaik AJ) and Anglo American Platinum Ltd & Another v AMCU & Others (case no. J158/14, 6/3/2014, per Van Niekerk J).
It is important to mention that facts and circumstances which led to applications made for urgent relief were almost identical in that it involved strike violence as well as a disregard of interim orders obtained. Therefore, the applications made were based on contempt of court. In each of the judgments, the unions and their members escaped sanction based on being found in contempt of court on technical grounds.
Of concern was that Myburgh SC at the SASLAW seminar referred to study conducted during 2012 by the Congress of South African Trade Unions (COSATU), in the form of a poll amongst its members [2.2 million - 2012], wherein it was found that, "60% of members polled believe that strike demands will not be achieved without violence."
Myburgh SC identified two flash points of violence during strikes namely:
“- Early on in the strike > directed against the employer;
- When support wanes > directed against employees."
Violence during strike action could be classified as a form of economic duress and has the following effect:
"> It skews collective bargaining power;
> It disturbs the forces of demand and supply;
> It places undue pressure on employers to settle; and
> It frightens employers into settlement."
It was deemed apposite to quote from the article by Myburgh SC supra, “But unions would be well advised to take heed of these judgments, as the judicial net is clearly tightening around those of them who are prepared to run the risk of disobeying court orders”.
It could be taken as a given that employers and their legal representatives would take due notice of the technicalities that prevented a successful order of contempt against a union and its members and ensure that the drafting of applications for interdicts, and ensuing contempt applications would address the technical shortcomings identified in the judgments cited above.
Of critical importance from a trade union perspective would be an awakening that the courts have had enough of strike violence and contemptuous conduct upon being served with interdicts. As was stated at the SASLAW seminar, “The courts are looking for ways to hold unions accountable.”
The words by Van Niekerk J, at the 15th SASLAW annual general meeting held by the South African Society for Labour Law (SASLAW) are of importance - and are repeated hereunder for edification - especially to strikers who after being dismissed for violence or any other unlawful conduct during a strike, where the dismissal was preceded by an application for an interdict, an ensuing successful application for contempt of court and were found to be in contempt followed by a quasi-criminal sanction:
“The first and most fundamental concern is one that acknowledges that what may be at issue is a breakdown of the rule of law; especially where orders are issued and then blatantly disregarded. It is not uncommon on return dates to be told that when the order granted by the court was served, the recipients of copies of the order refused to accept them or threw them to the ground and trampled on them.
At its most basic level, this is demonstrative of a rejection of the rule of law, and contempt for its institutions. ... Ironically, not infrequently it is the same people who show their contempt for the court in graphic terms who approach the court with claims for reinstatement when the inevitable dismissal for misconduct follows.’ [Emphasis added].