Employment law update – Unprotected strike – third party’s right to apply for an interdict

May 1st, 2012

South African Post Office Ltd v Tas Appointment and Management Services CC and Others (LC) (unreported case no J112/12, 13-2-2012) (Lagrange J)

By Moksha Naidoo

The issue for decision in this case was whether or not a party who is not the employer of employees embarking on an unprotected strike can bring an application interdicting the employees from continuing with such action.

The first to third respondents conducted business as labour brokers and were contracted by the applicant, the SA Post Office (SAPO), to supply labour. The other respondent employees were employed by the labour brokers and were stationed at 23 of SAPO’s depots in Gauteng.

The employees embarked on an unprotected strike demanding SAPO employ them directly as opposed to using the services of labour brokers.

Approaching the Labour Court on an urgent basis, SAPO, on 23 January 2012, successfully obtained an interim order interdicting the employees from furthering their unprotected strike, interfering with its business, as well as from coming within 500 metres of its premises.

On the return date, the representative of the employees raised what he considered to be a jurisdictional point. The representative argued that only the employer of employees engaging in unprotected strike action, and not a third party, could bring an application to interdict the employees from continuing to strike. If this was not the legal position, then any third party whose business had been affected by the unprotected strike could bring an application to interdict the strike when the employer chose not to. Under these circumstances, the Labour Relations Act 66 of 1995 (LRA), according to the representative, only provided recourse for the employer. As such, SAPO (which was not the employer) was not legally competent to bring such an application.

SAPO’s representative argued that the matter was not a jurisdictional issue but was rather one relating to locus standi; namely whether the applicant had a legal interest in the matter. The representative argued that the applicant’s locus standi stemmed, firstly, from a common law right not to have any unlawful interference with its business, its employees performing their duties, as well as the right to protect its property from any unlawful damage. Secondly, the representative argued that the applicant had a statutory right in terms of s 68(1)(a) of the LRA to interdict employees embarking on an unprotected strike.

Section 68(1)(a) reads:

‘68 Strike or lock-out not in compliance with this Act

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this chapter, the Labour Court has exclusive jurisdiction –

(a) to grant an interdict or order to restrain –

(i) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

(ii) any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out.’

The court noted that the above section does not prescribe a particular class of potential applicants that can seek an order of this nature.

The court found that for a party to establish its locus standi when seeking to interdict an unprotected strike, it must demonstrate that the strike is unprotected in terms of the LRA and, secondly, that the strike action has infringed one of more of its legal rights. The second requirement would not be satisfied if an applicant merely established an inconvenience, directly or indirectly, due to the unprotected strike, as this would open the floodgates to litigation. If the applicant was the employer, the court went on to say, its locus standi would be logically assumed.

Further to this, the court found that it had limited jurisdiction to hear common law claims when contractual or delictual liability arose from any unprotected strike action. This view was supported by the fact that the LRA gave the court sole jurisdiction to hear any damages claim arising from infringements of contractual and delictual rights that resulted from any unprotected strike action. On the basis of these findings, the court found that it was not only an employer who could apply for an order as envisaged by s 68(1), but any party whose rights have been infringed as a result of an unprotected strike action could do so.

Turning to s 68(1), the court held that this section did not confer a statutory right to parties, but rather mandated the court to grant interlocutory relief to parties legally affected by unprotected strike action.

Having made this distinction, the court examined whether the applicant had satisfied the two requirements as set out above.

On the first point, the court noted that it was never in dispute that the strike was not in accordance with the provisions of the LRA and hence deemed unprotected.

In evaluating whether any of SAPO’s rights had been infringed, Lagrange J said the following at para 16:

‘There is undisputed evidence that the conduct of the strikers included acts of assault and intimidation of permanent and replacement workers, the invasion of the applicant’s various premises and malicious damage to the applicant’s property. These various actions all amounted either to an unlawful interference in the applicants’ employment contracts with other employees, or breaches of the employer’s property rights, or criminal offences, or alternatively a combination of one or more of these types of infringement. Moreover, the combination of the strikers’ withdrawal of their own labour together with preventing the applicant from being able to make use of replacement labour clearly interfered with the fulfilment of the labour brokers’ contractual obligations to the applicant to the obvious detriment of the applicant. Withholding their own labour did not, in and of itself, prevent the labour brokers from fulfilling their obligations as the first respondent’s answering affidavit demonstrates. But combined with the obstruction of the provision of replacement labour it did.’

Satisfied that SAPO’s common law rights had been infringed by the conduct of the employees, the court confirmed the interim order and ordered the employees, jointly and severally, to pay SAPO’s costs occasioned by the application.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2012 (May) DR 62.