A recent decision by the Constitutional Court has important implications for employers in relation to seeking final interdictory relief in a strike marred with unlawful conduct.
Strikes in South Africa have an unsettling history, where changes to interdict requirements can cause panic. Our courts have been inundated with urgent applications by employers to interdict strike action marred by unlawful and often criminal acts. Recently, the Constitutional Court (CC) in
Commercial Stevedoring Agricultural and Allied Workers' Union and Others v Oak Valley Estates (Pty) Ltd and Another (CCT 301/20)  ZACC 7 had to determine whether an employer, that is faced with unlawful conduct during a protected strike, can obtain a final interdict against employees participating in strike action. The focus is whether this can be done without linking each employee to the unlawful conduct.
On 6 May 2019, a protected strike was called by the Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU). Prior to the commencement of the strike, the CCMA determined Picketing Rules and the Commissioner noted that prior strike action at Oak Valley had resulted in violence and damage to property. As expected, the strike was marred with unlawful conduct. Oak Valley sought an undertaking from CSAAWU that its members would
inter alia, comply with the Picketing Rules and cease with all unlawful conduct. No undertaking was provided by CSAAWU and contended that the unrest was out of its control, as it was caused by the local communities. Consequently, Oak Valley approached the Labour Court (LC), and sought a rule nisi interdicting the respondents (CSAAWU, 364 employees as the
"Individual Respondents" and
"Unidentifiable Respondents" being non-employees) from, amongst other things, unlawfully interfering with its operations. Oak Valley insisted that an interdict against the Individual Respondents only would have no practical effect unless the Unidentifiable Respondents were also interdicted. The LC granted interim relief against CSAAWU, the Individual Respondents and the Unidentifiable Respondents.
Consequently, some of the Individual Respondents returned to work. On the return date for final relief, Oak Valley sought relief only against CSAAWU, the Individual Respondents who remained on strike and the Unidentifiable Respondents. Oak Valley however abandoned the relief it sought against the Unidentifiable Respondents. CSAAWU raised three defences at the LC. For purposes of this case note, we focus on CSAAWU's allegation that Oak Valley had failed to link any of the cited Individual Respondents to the unlawful conduct. The LC granted the final interdict against the Individual Respondents on the basis that Oak Valley's failure to identify the Individual Respondents in relation to the unlawful conduct did not render the interdictory relief sought incompetent. On appeal, the Labour Appeal Court (LAC) accepted that Oak Valley was able to name certain individuals who participated in the unlawful conduct with a further group of unnamed, but clearly identifiable individuals, and if the conduct was not interdicted, it would continue. Accordingly, the LAC held that it would be cumbersome to require an employer to specifically name employees it seeks interdictory relief against.
The Applicant's case: there is no link
The CC was asked to determine whether a final interdict ought to have been granted against CSAAWU and the remaining Individual Respondents. CSAAWU contended that interdictory relief will only be competent if a rational factual connection can be drawn between the alleged unlawful conduct and the Individual Respondents. Notably, there was no dispute that the unlawful conduct took place; the main contention was that Oak Valley failed to establish that the unlawful conduct could be linked to the Individual Respondents. Absent proving this link, CSAAWU contended that granting relief would be a violation of settled law on the requirements for a final interdict.
The CC on the requirement to establish a link
It is trite that to obtaining interim relief, an applicant must show a
prima facie right, a well-grounded apprehension of irreparable harm, no other satisfactory relief and that the balance of convenience favours granting interim relief. The CC confirmed that for an applicant to succeed in obtaining a final interdict, an applicant must show a clear right, an injury actually committed or reasonably apprehended, and that there is no other competent remedy. The test in seeking interim interdictory relief is less than that of a final interdictory relief.
The CC distinguished between identification by name and drawing a link between the respondents and the unlawful conduct. This case dealt with the latter. The CC accepted that there must be some link between the respondent/s and the alleged actual or threatened injury. Ultimately the CC made the following findings:
- for interdictory relief to be granted, mere participation in strike action in which there is unlawful conduct is not sufficient to link a respondent to the unlawful conduct; and
- the necessary link can be established where the strikers commit the impugned unlawful conducted as cohesive group.
The CC found that if mere participation in a strike or protest carries with it a risk of being interdicted, this may deter lawful strikes and protest action and innocent participants in strike action would find themselves as subjects of an interdict and suffer prejudice. This, the CC found, may result in a chilling effect on the exercise of the constitutional right to strike. The CC stated, however, that whether the necessary link has been established will be based on the particular facts of each case. The CC provided good indication on when the necessary link can be established as follows:
- Where the unlawful conduct during protest or strike action is ongoing, widespread and manifest, individual strikers or protests will have to disassociate themselves from the unlawful conduct in order to escape the inference that it is reasonably apprehended that they would cause harm to the applicant.
- Where a protest action is substantially peaceful but there are isolated instances of unlawful conduct, it is only those protesters or strikers who associate themselves with the unlawful conduct that can be placed under interdict.
The CC cautioned that the requirement does not mean that an employer must lead direct evidence which establishes conclusively that an employee was responsible for specific unlawful conduct. The employer's onus may be discharged if the employer puts up facts from which an inference can be drawn on a balance of probabilities that an employee engaged or associated themselves with the unlawful conduct.
Impact of judgment on employers
The effect of this judgment is that an employer cannot seek final interdictory relief against unnamed or unidentifiable employees during a strike action. Accordingly, employers have a more onerous duty to ensure that they sufficiently link the respondent/s to the unlawful conduct and an extra effort needs to be made to identify the striking employees. For this to materialise, employers must be able to associate the striking employees with the unlawful conduct perpetuated during the strike action. Employers should keep a record of the strike action from the commencement of the strike. This can be done by using perimeter cameras, drones and other digital devices to video record and photograph the strike action. The identity of the employees, as well as their conduct, must be fully recorded to the extent possible. In addition, a management official or security personnel should be tasked with keeping and taking custody of a strike diary that records the unlawful conduct, the identified perpetrators and their specific conduct.
The video footage, photographs and contents of the strike diary should form part of the founding papers. The averments relied upon by the employer to associate employees to the unlawful conduct should be clearly set out in the founding papers, evidence should be made available to the court and confirmatory affidavits should accompany the founding affidavit. Lastly, and importantly, employers may use the content of the strike diary to take disciplinary action against the identifiable perpetrators.
It is imperative that employers obtain proper legal advice at the commencement of the strike action to ensure that they are able to cover all legal aspects in order to prepare for urgent legal proceedings and instituting disciplinary action against the identifiable striking employees committing the unlawful conduct.