This case review is aimed at critically analysing the Oak Valley Estates case decided by the Constitutional Court (CC) on 3 March 2022. This case came before the CC by way of an appeal against the decision of the Labour Appeal Court (LAC), which had confirmed the decision of the Labour Court (LC). In essence, the case is a contextualised revisit of the rules governing interdicts, in particular the satisfaction of the requirement of apprehensible harm, which is a condition for the granting of a final interdict. In other words, the court had to determine whether a link must be established between each individual participating in a protest action to the threat against legally protected rights.
For better appreciation of the issues dealt with, this article evaluates the soundness of the approach adopted by the CC. The article will further examine the impact of the CC decision on the exercise of the right to strike and protest.
It was ‘common cause that the strike triggered incidents of intimidation, damage to property, and unlawful interference with Oak Valley’s business operations and that there were numerous breaches of the Picketing Rules’ (Oak Valley Estates para 5). This prompted the respondents to approach the LC on an urgent basis seeking an interdict against the protesting employees.
‘In response, the applicants raised three defences: (a) the court lacked jurisdiction regarding the alleged non-compliance with the Picketing Rules because Oak Valley did not refer a dispute regarding this alleged non-compliance in terms of either section 69(8) or 69(11) of the Labour Relations Act 66 of 1995;
(b) the interdict sought by Oak Valley was unduly broad and interfered with lawful conduct (in particular, it effectively evicted certain of the workers from their homes by restricting access to Oak Valley’s property); and
(c) Oak Valley had failed to link any of the unlawful conduct complained of to the respondents that it had cited (neither the 364 employees that were striking at the time nor the “unidentifiable” members of the public). The Labour Court accepted that it could not interdict the unidentifiable members of the public, but otherwise rejected the applicants’ defences’ (Oak Valley Estate para 11).
On the requirement of a ‘link’ question, the CC examined the law of interdicts and restated the requirements for a final interdict as including a ‘clear right; an injury committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy’ (Oak Valley Estate para 18).
The question on the link anchors on the requirement that a reasonable ‘apprehension of injury’ must exist before a final interdict is granted. Therefore, the court held that if the evidence presented before the court is ‘insufficient to establish any link between the respondent and the actual or threatened injury, the apprehension of injury cannot be reasonable. Put differently, it follows that there must be some link between the respondent and the alleged actual or threatened injury’ (Oak Valley Estates para 20).
The CC also examined the most significant issue, which was the dilemma the LC and the LAC faced, which was whether participation in a strike, protest, or assembly is sufficient to establish the link. If the answer is yes, then innocent participants in a strike or protest action will sometimes be caught in an interdict. The CC rejected the LAC’s view.
The CC decision is sound for several reasons. Firstly, it is worth noting that the judgment is unanimous. Secondly, the court took an opportunity to examine existing law on interdicts and surveyed a large collection of cases on the question of link where persons participate in a group. All these cases cited above establish that a link must be established between each person in the group except in exceptional circumstances where the protest action is prolonged giving individuals enough time to disassociate themselves with the unlawful conduct. Of all the cases examined, only one case is at odds with the established principle. On the facts, the court made a correct finding that no such link was established save for few individuals identified by names. Further, on principles and out of the need to protect and promote the rights to strike and protest as guaranteed by the Constitution, it makes good sense to avoid the granting of interdicts against innocent participants as that would discourage people to participate in protests and strike for fear of contempt proceedings emanating from group liability.
The court correctly noted the prevalence of strikes in South Africa as a tool of democracy and industrial relations. The court correctly observed that ‘it is not far-fetched to conclude that the prospect of being implicated in a contempt application – whether or not such application is likely to succeed – will have a chilling effect on the exercise of the constitutional rights to strike and protest. If mere participation in a strike or protest carries the risk of being placed under an interdict, this might well serve to deter lawful strike and protest action. Moreover, if a participant in a strike or protest is placed under an interdict, despite having conducted herself lawfully, she might well refrain from further strike action out of the justifiable fear of being swept up in contempt proceedings in the event that other persons in the crowd act in breach of the interdict’ (Oak Valley Estates para 23).
Therefore, the CC ruling goes further to guarantee the right of everyone to protest and the right of workers to strike by ensuring that liability falls on specific individuals whose conduct is unlawful while protecting the lawful conduct of the innocent participants.
Vuyokazi Yokwe LLB (UFH) is a legal practitioner at the Right2Protest Project based at the Centre for Applied Legal Studies at Wits University.
This article was first published in De Rebus in 2022 (June) DR 29.
