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Section 23(2)(c) of the Constitution guarantees the right of workers to strike. Chapter IV of Labour Relations Act 66 of 1995 (LRA) facilitates the exercise of this fundamental right in practice. Where strike action complies with the LRA’s procedural and substantive requirements, s 187(1)(a) provides workers with protection against dismissal and s 67(2) and (6) with immunity from delictual and contractual claims arising from participation in a protected strike. These requirements are not onerous and accord with international labour law principles as developed by the International Labour Organisation (ILO) (see A Steenkamp ‘Unprotected strikes, interdicts and other remedies’ in D Du Toit (ed) Strikes and the Law (Durban: LexisNexis 2017) at p 125). In short, the LRA does not make it unduly difficult for workers to embark on protected strikes.

However, it is equally well known that protected industrial action is frequently accompanied by violence (see E Manamela and M Budeli ‘Employees’ right to strike and violence in South Africa’ (2013) 46 Comparative and International Law Journal of Southern Africa 308).

To counter strike violence, a growing body of Labour Court (LC) jurisprudence has already begun developing. On at least two occasions, the court has begun to examine whether protected strikes marred by violence should forfeit protection (see Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union and Others (2012) 33 ILJ 998 (LC) at para 13 and National Union of Food Beverage Wine Spirits and Allied Workers and Others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied Workers and Others (2016) 37 ILJ 476 (LC) at paras 30 – 32). In late 2018, the LC took this one step further, declaring a protected picket under s 69(1) of the LRA as unprotected following various incidents of violence and a breach of picketing rules (see Dis-Chem Pharmacies Ltd v Malema and Others (2019) 40 ILJ 855 (LC) paras 28 – 31). Several judgments, adding to this trend, have begun to impose increasingly stringent duties on unions to ensure their members behave peacefully when engaged in protected industrial action (see Xstrata South Africa (Pty) Ltd v Association of Mineworkers and Construction Union and Others (LC) (unreported case no J1239/13, 25-2-2014) (Tlhotlhalemaje AJ) at paras 31 – 40; SA Transport and Allied Workers Union and Another v Garvas and Others (2012) 33 ILJ 1593 (CC) at paras 39 – 41; and KPMM Road and Earth Works (Pty) (Ltd) v Association of Mineworkers and Construction Union and Others (2018) 39 ILJ 609 (LC) at paras 49 – 56). Other decisions, have also begun to explore the possibility of holding unions vicariously liable for contempt of court, where they fail to take all reasonable steps to ensure that their members comply with interdicts restraining violent acts during the course of a protected strike (see Food and Allied Workers Union v In2Food (Pty) Ltd (2014) 35 ILJ 2767 (LAC) at paras 18 – 19 and GRI Wind Steel SA v Association of Mineworkers and Construction Union and Others (2018) 39 ILJ 1045 (LC) at paras 7 – 10). Parliament has also intervened. The Labour Relations Amendment Act 8 of 2018 came into effect in January 2019, which  among other things, amended s 150 of the LRA to provide for a process whereby ‘dysfunctional strikes’ – in narrowly circumscribed situations – can forfeit protection  (see S Godfrey, D du Toit and M Jacobs ‘The New Labour Bills: An Overview and Analysis’ (2018) 39 ILJ 2161 at 2172).

What is interesting about these developments, insofar as strike violence is concerned, is that the LRA provides the LC with no express power to declare a protected strike unprotected because of violence (see A Myburgh SC ‘Interdicting Protected Strikes on Account of Violence’ (2018) 39 ILJ 703). It is undeniable that violent industrial action cannot be condoned in a society committed to the rule of law and the orderly resolution of labour disputes and the protection of fundamental human rights. However, the more pressing issue is this: Will giving the LC authority to declare a protected strike unprotected because of violence, curb South Africa’s (SA’s) strike violence epidemic or will it have the unintended consequence of further entrenching the inherent inequality of bargaining power between employer and employee?  Before examining this question, it is necessary to consider what remedies the LRA already provides.

Remedies for violent strikes

The LRA provides employers, and members of the public, with several remedies for any harm protected strikes marred by violence may cause.

Firstly, s 67(8) of the LRA expressly states the protections against dismissal and immunity from delictual or contractual claims do not apply to any conduct constituting an offence. Section 67(8) thus already strips violent strikers of the protections ch IV of the LRA provides, by recognising ‘the right to engage in a protected strike is not a license to engage in misconduct’ (see CEPPWAWU and Others v Metrofile (Pty) Ltd  [2004] 2 BLLR 103 (LAC) at para 53). Employers, therefore, can fairly dismiss employees for violent acts committed during a protected strike, provided they comply with ch VIII of the LRA, sch 8 Code of Good Practice: Dismissal and if strike violence is the proximate cause of the dismissal, not simply a guise to dismiss workers because of their participation in a protected strike (see SACWU and Others v Afrox Ltd [1999] 10 BLLR 1005 (LAC) at paras 31 – 32). Where multiple violent strikers are involved, it is not even necessary to establish every employee directly participated in violence, as it is sufficient if the employer can establish employees associated themselves with violence committed by others according to the active association strand of the common purpose doctrine (see T Cohen ‘Dismissal’ in D du Toit (ed) (op cit) at 200 and SA Municipal Workers Union on behalf of Abrahams and Others v City of Cape Town and Others (2011) 32 ILJ 3018 (LC) at paras 40 – 42). Following the recent Constitutional Court (CC) decision in National Union of Metalworkers of South Africa obo Ngonezi v Dunlop Mixing and Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as amicus curiae) [2019] 9 BLLR 865 (CC) at paras 73 – 76) the court unanimously rejected the notion that employees have a strict duty to inform their employer about the violence committed by others or risk been found guilty of breaching the implied contractual duty of good faith under the doctrine of derivative misconduct (on derivative misconduct generally, see Western Platinum Refinery Ltd v Hlebela and Others (2015) 36 ILJ 2280 (LAC) at paras 5 – 20 and Dunlop (op cit) at paras 37 – 64). However, the CC appeared to leave the possibility open that where the employer can guarantee an employee’s safety, that employee could be under a duty to identify who was involved in violence or risk facing dismissal based on derivative misconduct (Dunlop (op cit) at para 76). Finally, both the LC and Labour Appeal Court (LAC) have accepted it is possible, in principle, for an employer to fairly dismiss violent strikers based on its operational requirements under s 189 of the LRA (see Tiger Food  Brands Ltd t/a Albany Bakeries v Levy NO and Others (2007) 28 ILJ 1827 (LC) at paras 30 – 40 and Food and Allied Workers Union and Others v Premier Foods Ltd t/a Blue Ribbon Salt River [2012] 12 BLLR 1222 (LAC) at para 26).

Secondly, employers, and potentially members of the public, can interdict strike violence in the LC under s 158(1)(a) of the LRA (see A Myburgh SC ‘The failure to obey interdicts prohibiting strikes and violence’ (2013) 23 Contemporary Labour Law 1 at 1 – 2). Such applications can be brought urgently on an ex parte basis (Myburgh (op cit)). Violent strikers can also be held personally liable for any costs incurred in pursuing interdict applications of this nature (see Tsogo Sun (op cit) at para 11). Furthermore, failure to comply with interdicts restraining violent strike action constitutes civil contempt of court and can result in imprisonment and hefty fines (see Steenkamp (op cit) at 113 – 118 and Ram Transport SA (Pty) Ltd v SA Transport and Allied Workers Union and Others (2011) 32 ILJ 1722 (LC) at para 9).

Thirdly, strikers who violently picket or demonstrate in any public space can be held jointly and severally liable for riot damage under s 11(1) of the Regulation of Gatherings Act 205 of 1993 by their employer and members of the public (see M Wallis ‘Now you foresee it, now you don’t – SATAWU v Garvas and Others’ (2012) 33 ILJ 2257 at 2258 – 2260). Section 11(1) of the Regulation of Gatherings Act creates a form of strict statutory liability, allowing employers and members of the public to hold strikers and their union vicariously liable for any harm caused by violent conduct during the course of a protected strike (see Garvas (op cit) at para 38 – 44).

Fourthly, where strikers engage in intimidation, assault or the destruction of property, for instance, both employers and members of the public can lay criminal charges which could lead to prosecution by the state (see A Rycroft ‘What can be done about strike-related violence?’ (2014) 30 International Journal of Comparative Labour Law and Industrial Relations 199 at 209 – 210).

Will removing protection curb strike violence?

The above discussion illustrates strike violence already attracts consequences. However, there are two problems:

• First, these remedies are, by their nature, reactive as they are only available once harm has already arisen.
• Second, and more importantly, experience shows that interdicts restraining strike violence are frequently disobeyed (see Betafence South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (LC) (unreported case no C194/2016, 15-9-2016) (Tlhotlhalemaje J) at paras 54 – 55).

To curb strike violence – and given the relative ineffectiveness interdicts restraining strike violence appear to have – some commentators propose the LC should have the authority to declare protected strikes unprotected if they turn violent (Myburgh (op cit) at 706 and Rycroft (op cit) at 206 – 208). This argument is underpinned by good intentions and seeks to achieve a legitimate objective: To prevent the harm violent strikes cause non-strikers, employers, members of the public and the economy. However, as the saying goes, ‘the road to hell is paved with good intentions’.

The argument that violent protected strikes should be declared unprotected appears to rest on the following premise: If strikers know protected strike action can be declared unprotected because of violence, they would be more reluctant to utilise violence during a protected strike. At face value, this appears to hold weight. However, examining it further, it is doubtful this would achieve its intended objective. This is for three interconnected reasons:

• First, it begs the question why an order declaring a violent protected strike unprotected would prevent strike violence? Employees already know the LC can interdict violence during a protected strike and such interdicts are, as noted, frequently disobeyed. This equally applies to interdicts restraining unprotected strikes. Therefore, why would an order declaring a protected strike unprotected because of violence suddenly achieve a different result? For this reason, it is doubtful that simply because the LC declared a violent protected strike unprotected that workers would not utilise violence, or would comply with an order prohibiting strike action, simply because it was declared unprotected.
• Second, it would require the judiciary to make difficult subjective value judgments about the degree of violence required for a protected strike to forfeit protection. How would a court weigh destruction of property against violence to persons (see E Fergus ‘Reflections on the (Dys)functionality of strikes to collective bargaining: Recent developments’ (2016) 37 ILJ 1537 at 1546))? Conservative judges may be more inclined towards finding this threshold reached than others (Fergus (op cit)). The fundamental problem with this proposed solution is giving the LC this power could provide employers with an undue tactical advantage, similar to the tactical advantage the interim interdict procedure already provides (see Rycroft (op cit) at 204 – 205). In short, it could provide employers with a weapon to undermine the legitimate exercise of the constitutional right to strike, adding further scepticism towards what some sectors of organised labour already have for the courts (see Steenkamp (op cit) at 113 – 118).
• Third, the CC has held that those who exercise their constitutional right to demonstrate and assemble peacefully and unarmed do not forfeit constitutional protection simply because other protesters are violent (Garvas (op cit) at para 53). I submit that this same principle should apply equally to violence during a protected strike. Simply because some strikers act violently, it does not necessarily follow that peaceful strikers should lose protection. This is fortified by the fact that criminal elements sometimes use strike action as cover to engage in criminal acts, and that a certain political party has begun to frequently involve itself in industrial disputes, sometimes encouraging workers to breach orders of court against their best interests (see National Union of Food Beverage Wine Spirits and Allied Workers and Others  (op cit)  at para 19-23  and Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers SA and Others  (2019) 40 ILJ 342 (LC) at paras 14 – 30 and 39 – 46).

Conclusion 

It is undeniable that there are too many violent strikes in SA. However, proposing that protected violent strikes entirely forfeit protection is problematic for various reasons. Among other things, it fails to take proper account of the remedies the law already provides and the constitutional rights of workers who peacefully strike. The root causes of violent strikes partly arise from our historically highly adversarial industrial relations climate but also, and more fundamentally, high levels of socio-
economic inequality in South African society generally (see T Ngcukaitobi ‘Strike Law, Structural Violence and Inequality in the Platinum Hills of Marikana’ (2013) 34 ILJ 836). A lasting solution towards eradicating strike violence lies in properly addressing socio-economic inequality, not undermining the constitutional right of workers to strike.

• See also Kelsey Allen ‘The death of derivative misconduct’ 2019 (Sept) DR 23 for a discussion on the Dunlop

Geoffrey Allsop BA LLB LLM (UCT) is a candidate legal practitioner at Haffegee Roskam Savage Attorneys in Johannesburg.

This article was first published in De Rebus in 2019 (Nov) DR 14.