SOUTH AFRICA: CONSTITUTIONAL COURT DECIDES THAT A LINK BETWEEN RESPONDENTS AND UNLAWFUL CONDUCT IS REQUIRED TO GRANT INTERDICT
In a unanimous judgment handed down on 1 March 2022, the apex Court held that an employer is entitled to interdictory relief for actual or threatened conduct during a protected strike only if it can prove a rational, factual connection between the actual or threatened unlawful conduct and the persons against whom the interdict is sought.
The decision relates to Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Ltd and Another  ZACC 7.
The Commercial Stevedoring Agricultural and Allied Workers’ Union approached the Constitutional Court to set aside a final order granted by the Labour Appeal Court (LAC) against its members. The union’s main argument was that the employer, Oak Valley Estates, failed to establish that the unlawful action that occurred during the protected strike could be attributed to its members. Furthermore, the union contended that the LAC’s granting of the final interdict violated the requirements for a final interdict.
On 6 May 2019, a protected strike commenced at Oak Valley Estates. The strike was marred by incidents of intimidation, damage to property and unlawful interference with Oak Valley Estates’ business operations. This was in breach of the Picketing Rules established by the Commission for Conciliation, Mediation and Arbitration (CCMA).
Oak Valley Estates obtained interim relief against the union, the striking employees, and a group of ‘unidentifiable respondents’ in the Labour Court. On the return date, the Labour Court granted final relief but limited this to relief against the union and those workers who remained on strike. The Labour Court accepted that it could not grant relief against unidentifiable people.
The union was aggrieved by the decision of the Labour Court and raised the following defences:
- the Labour Court did not have jurisdiction to grant the relief sought in relation to the picketing rules because Oak Valley Estates had not referred a dispute about the picketing rules to the CCMA;
- the relief granted was overly broad; and
- Oak Valley Estates had failed to establish a link between the impugned conduct and the striking employees.
The Labour Appeal Court accepted the first two defences but was satisfied that there was no need to identify which of the striking employees were responsible for the impugned conduct.
The union then approached the Constitutional Court.
The Constitutional Court’s Decision
The narrow issue before the Constitutional Court was whether an applicant seeking a final interdict is required to establish a factual link between the individual respondents against whom the interdict is sought and the unlawful conduct. In other words, is mere participation in a strike, protest, or assembly, in which there is unlawful conduct, sufficient to establish the required link?
The Court found that, in order to establish that there was a reasonable apprehension of harm, it was necessary to identify the perpetrators of the unlawful conduct. Put simply, there must be a clear link between the respondents and the alleged actual or threatened injury. It reasoned as follows:
- For an interdict to be granted, it must be shown, on a balance of probabilities, that unless restrained by an interdict, the respondents will continue committing an injury against the applicant or that it is reasonably apprehended that the respondents will cause such an injury.
- In a protected strike wherein there is unlawful conduct, innocent participants of the strike or protest action will sometimes get caught in the interdict. This prospect of a court order being granted against innocent participants would have a ‘chilling effect on the exercise of constitutional rights to strike and protest’.
- In turn, this could deter lawful strike and protest action if mere participation carries the risk of being interdicted.
However, the Court acknowledged that there may be circumstances that warrant the granting of an interdict against unidentifiable employees. For example:
- Where a strike is beset by unlawful conduct and large numbers of protesters or strikers deliberately conceal their identities – for instance, through the wearing of masks – a Court may be entitled to more readily conclude that an applicant has a reasonable apprehension that the participants in the strike will cause it harm. The Court suggested that the doctrine of common purpose would apply.
- Where unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct to escape the inference that it is reasonably believed that they will cause injury to the applicant.
This case is an important one for all employers to consider when faced with striking employees. It places a greater onus on them to identify individual protestors during strike action to successfully pursue interdictory relief. This may require the use of extensive surveillance systems, diligent recording of what transpires during a strike and attentive ‘eyes on the ground’ when employees embark upon protest action.
This article was written by Rosalind Davey, Ayanda Nkabinde, Ayanda Majola and Soraia Machado.