CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 301/20
In the matter between:
COMMERCIAL STEVEDORING AGRICULTURAL
AND ALLIED WORKERS’ UNION First Applicant
WORKERS IDENTIFIED IN ANNEXURE “A” TO
THE APPLICANTS’ FOUNDING AFFIDAVIT Second to 174th Applicants
and
OAK VALLEY ESTATES (PTY) LIMITED First Respondent
BOLAND LABOUR (PTY) LIMITED Second Respondent
Neutral citation: Commercial Stevedoring Agricultural and Allied Workers’ Union
and Others v Oak Valley Estates (Pty) Ltd and Another [2022]
ZACC 7
Coram: Madlanga J, Madondo AJ, Majiedt J, Pillay AJ, Rogers AJ,
Theron J, Tlaletsi AJ and Tshiqi J
Judgment: Theron J (unanimous)
Heard on: 31 August 2021
Decided on: 1 March 2022
Summary: Right to strike — final interdict — leave to appeal is granted —
interdictory relief is only competent if respondents are linked to
the actual or threatened unlawful conduct — appeal is upheld in
part
2
ORDER
On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court),
the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld in part.
3. Save in respect of the 23rd applicant [Mr Magaba], paragraphs 2.1 and
2.3 of the Labour Appeal Court’s order are set aside.
4. There is no order as to costs in this Court.
JUDGMENT
THERON J (Madlanga J, Madondo AJ, Majiedt J, Pillay AJ, Rogers AJ, Tlaletsi AJ and
Tshiqi J concurring):
Introduction
[1] Can an employer faced with unlawful conduct committed during a protected
strike interdict employees participating in that strike without linking each employee to
the unlawful conduct? The Labour Appeal Court held that it can.1 It said that it would
be “a bridge too far ”, in the “fraught context of an industrial relations dispute”, to
impose such a requirement on employers seeking interdictory relief. The applicants in
this unopposed appeal – comprising the Commercial Stevedorin g Agricultural and
1 Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Limited,
unreported judgment of the Labour Appeal Court, Court Case No CA11/19 (17 November 2020) (Labour Appeal
Court judgment).
THERON J
3
Allied Worker s’ Union (CSAAWU) and 173 striking workers , against whom the
Labour Court granted a final interdict – disagree. They contend that there must be a
rational factual connection between the actual or threatened unlawful conduct and the
persons against whom the interdict is sought, and that in this case, no such link has been
established.
Factual background
[2] On 6 May 2019, a protected strike called by the first applicant, CSAAWU,
commenced at the premises of the first respondent, Oak Valley Estates (Pty) Limited
(Oak Valley). Oak Valley operates the Oak Valley Farm in Grabouw in the
Western Cape. The grievances which underpinned the strike action related to the
alleged racially based allocation of employee housing by Oak Valley and its refusal to
recognise “seasonal”2 workers as permanent employees.
[3] The workers who participated in the strike were either employed by Oak Valley
in terms of permanent contracts of employment or had seasonal employment on
Oak Valley’s farm through a labour broker, Boland Labour (Pty) Limited
(Boland Labour), the second respondent . Initially, some 364 workers participated in
the strike. B y the time CSAAWU delivered its replying affidavit in the Labour Court
proceedings, which are the subject of this appeal, only the second to 174th applicants
remained on strike.
[4] On 2 May 2019, prior to the commencement of the strike, the Commission for
Conciliation, Mediation and Arbitration (CCMA) determined Picketing Rules in terms
of section 69 of the Labour Relations Act. 3 In those Rules, the CCMA Commissioner
noted that previous strike action at Oak Valley Farm had resulted in violence and
2 The applicants contend t hat these workers were inappropriately labelled as “seasonal” when in reality they
performed work indistinguishable from Oak Valley’s permanent employees. They contend that, as a result, these
workers unfairly received lower pay than Oak Valley’s permanent employees.
3 66 of 1995.
THERON J
4
damage to property, and that it was therefore prudent to allow gathering and picketing
only in a designated area. 4 The Picketing Rules also prohibited, amongst others :
preventing suppliers, clients, customers and employees of Oak Valley from entering or
leaving Oak Valley’s premises; committing any unlawful action such as intimidating,
coercing, or threatening non-striking workers; wearing masks; and carrying dangerous
weapons.
[5] It is 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. On 15 May 2019, the
Commissioner convened a meeting following CSAAWU’s request for clarification of
the Picketing Rules. It appears that the complaint made by CSAAWU at this stage was
that the demarcated pi cketing area was some 800 metres from the entrance of the
Oak Valley Farm which inhibited the capacity of the striking workers to dissuade
customers from supporting Oak Valley. The Commission er encouraged the parties to
engage further, but the Picketing Rules were not revised.
[6] On 17 May 2019, Oak Valley’s attorneys addressed a letter to CSAAWU seeking
a written undertaking that its members would comply with the Picketing Rules and
would cease intimidating and threatening employees, engaging in violent and dangerous
conduct, and setting alight objects on Oak Valley’s premises. The letter indicated that
if this undertaking was not given, Oak Valley would launch urgent proceedings in the
Labour Court. Also on 17 May 2019 , CSAAWU’s attorneys advised Oak Val ley by
letter that the union denied that its members had breached the Picketing Rules and
explained that “the unrest presently experienced in and around your client’s premises
and the surrounding areas ha s been at the hand of the local communities over who m
[CSAAWU] has no control or authority”. The letter did not provide the undertaking
sought by Oak Valley. Instead, it proposed that the matter be resolved urgently by way
of negotiations.
4 This being the corner of Oak Avenue and R321 Road, Grabouw, Western Cape.
THERON J
5
[7] On the same day, Oak Valley and Boland Labour 5 served an urgent application
on the applicants, which was set down for hearing on 20 May 2019.
[8] In the subsequent urgent proceedings before the Labour Court, Oak Valley
sought a rule nisi interdicting CSAAWU and each of the 364 workers who had initially
participated in the strike from, amongst others, unlawfully interfering with
Oak Valley’s operations . These 364 workers were referred to as “the Individual
Respondents”. Oak Valley also cited and sought an interdict against “the Unidentifiable
Respondents”, who it said were “people who associate themselves with the Individual
Respondents in the criminal and unlawful conduct”. Oak Valley argued that although
they could not be individually identified, these Unidentifiable Respondents had actively
associated with the conduct of the Individual Respondents. It insisted that the interdict
against the Individual Respondents would have no practical effect unless the
Unidentifiable Respondents were also placed under interdict.
[9] Oak Valley contended that the strike action triggered unlawful conduct,
including the alleged intimidation of some of its non-striking workers, damage to its
property, the attempted burning of patches of veld and a shed on Oak Valley Farm, the
wearing of cold-weather balaclavas (in breach of the Picketing Rules), and the blocking
of the entrance to the Farm. Oak Valley also alleged that the strike and protest rippled
out into the local community, and was related to protest action that, at its height, briefly
blocked the N2 highway at Sir Lowry’s Pass.
[10] On 20 May 2019, the Labour Court granted the interim relief against CSAAWU,
the Individual Respondents and the Unidentified Respondents. Thereafter, some of the
striking workers returned to work. When Oak Valley again approached the
Labour Court, this time for final relief, it abandoned its case against 191 of the
Individual Respondents who were no longer on strike. It therefore sought relief only
5 I refer to these parties collectively as Oak Valley, save where the context makes clear that I am referring to Oak
Valley Estates (Pty) Limited alone.
THERON J
6
against the Unidentifiable Respondents, CSAAWU, and the workers who remained on
strike, namely, the second to 174th applicants in this Court.
[11] 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; (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.
[12] In the Labour Appeal Court, the applicants were successful in relation to the
first two of their defences. Thus , the only issue that is still in contention is whether
paragraph 2 of the Labour Appeal Court’s order ought to be set aside. It reads:
“2. The order of the Labour Court is set aside and replaced with the following order:
2.1 The second and further respondents whose names are set out in
Annexure “A1” and “B1” attached to this judgment are interdicted
from participating in any unlawful or criminal acts in support or
furtherance of their protected strike;
2.2 The first respondent is directed to call upon the individual respondents
to desist from unlawful and/or criminal acts in support or furtherance
of their protected strike.
2.3 The second to further respondents are interdicted and restrained from:
(a) Intimidating, harassing, assaulting:
(i) any employee of the first and/or second applicants
whether such employee is employed on a temporary,
THERON J
7
casual, fixed term, fixed purpose or permanent basis;
or
(ii) any other persons involved in or connected with the
conduct of the first a pplicant’s operations or the
business of the second applicant at Oak Valley Farm,
Grabouw (“the farm”); and/or
(iii) any customers of, visitors to, suppliers and other
business associates of the first applicant wishing to
visit the farm or do business with or support the first
applicant at the farm;
(b) in any way unlawfully interfering with or obstructing the
normal operations of the first applicant’s business at the farm
and on the premises;
(c) prohibiting the individual respondents from damaging any
property of the first or second applicants;
(d) prohibiting the individual respondents from setting fire or
attempting to set fire to any property of the first applicant;
2.4 The first respondent is interdicted and restrained from instigating,
inciting the se cond to further respondents in engaging, inciting or
instigating in any unlawful conduct;
2.5 The first respondent is directed to call on its members, including the
individual respondents to desist from unlawful conduct as set out
above and comply with the agreed Picketing Rules and the terms of
this order;
2.6 There is no order as to costs.”6
[13] The Labour Appeal Court accepted the Labour Court’s rejection of “the
requirement of establishing a link between the individuals who were interdicted and the
impugned conduct”.7 It thus upheld the final interdict on the basis that Oak Valley “was
able to name certain individuals who participated in what it considered to be unlawful
6 Labour Appeal Court judgment above n 1 at para 37.
7 Id at paras 18 and 28.
THERON J
8
acts together with a further group of unnamed but clearly identifiable individuals”.8 The
Court reasoned that “[t]o insist in the fraught context of an industrial relations dispute
that an employer can only gain relief against those employees it can specifically name
from a group which was involved in unlawful activity is surely a bridge too far”.9
[14] The applicants contend that, in this, the Labour Appeal Court erred. They say
that interdictory relief is only competent if a rational factual connection can be drawn
between the alleged unlawful conduct and the respondents sought to be interdicted. In
this case, they say, there is “no link on the papers and the Labour Court and
Labour Appeal Court did not find there was such a link”. The applicants do not dispute
that certain unlawful conduct took place but maintain that Oak Valley failed to establish
that the conduct could be attributed to the second to 174th applicants. The applicants
contend that, absent a rational factual connection between these incidents and the
interdicted workers, members of the pub lic at large “could just as easily have been
responsible” for the impugned conduct. They say that this not only violates settled law
on the requirements for a final interdict, but is also inimical to the rule of law, which
requires that legal liability ca n only be imposed upon a person if a cause of action is
made out against her.
Jurisdiction and leave to appeal
[15] This Court has on a number of occasions confirmed that neither its constitutional
nor its extended jurisdiction will be engaged in an application for leave to appeal against
the misapplication of a settled legal test.10 It follows that the present application cannot
get off the ground if the alleged error committed by the Labour Appeal Court was
merely a misapplication of the settled test for fina l interdictory relief. In this case,
however, the applicants allege much more than the misapplication of a settled legal test.
8 Id at para 28.
9 Id.
10 University of Johannesburg v Auckland Park Theological Seminary [2021] ZACC 13; 2021 (6) SA 1 (CC);
2021 (8) BCLR 807 (CC) at para 49; General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019
JDR 1194 (CC); 2019 (8) BCLR 919 (CC) at para 49.
THERON J
9
They allege, instead, that the Labour Court and Labour Appeal Court got the law of
interdicts wrong. We are therefore required to ascertain rather than merely apply the
law. Moreover, the legal question identified requires that we determine the
circumstances in which a person exercising their rights in terms of sections 17 and
23(2)(c) of the Constitutio n can be interdict ed. Our constitutional jurisdiction is thus
engaged.11
[16] This Court’s extended jurisdiction is also engaged because we are confronted by
an arguable point of law of general public importance. It is arguable, because the law
reports are replete with conflicting answers to the legal question.12 And it is of general
public importance, because it bears directly on the regulation of strikes and protests,
which are a commonplace occurrence in South African society. In addition, as will
become apparent, the applicants have strong prospects of success. Leave to appeal is
thus granted.
The requirement of a link: general principles
[17] At the outset, it is necessary to draw a distinction between the identification by
name of the respondents against whom an interdict is sought and the drawing of a link
between those respondents and the unlawful conduct which an applicant reasonably
believes will persist or occur if an interdict is not granted. This case is concerned with
the latter: the complaint is that the final interdict against the second to 174th applicants
was not competently granted due to a failure to establish this link between each
11 Hotz v University of Cape Town [2017] ZACC 10; 2018 (1) SA 369 (CC) ; 2017 (7) BCLR 815 (CC) (Hotz) at
para 14.
12 Decisions affirming the requirement of a link include ABSA Bank Limited v South African Clothing and Textile
Workers Union 2014 JOL 31586 (KZD) (Absa Bank v SACTWU); Makhado Municipality v SA Municipal Workers
Union 2006 27 ILJ 1175 (LC) ; 2006 JOL 17074 (LC) (Makhado); Polyoak (Pty) Ltd v Chemical Workers
Industrial Union 1999 20 ILJ 392 (LC) (Polyoak); Oconbrick Manufacturing (Pty) Ltd v SA Building and Allied
Workers Organization 1998 19 ILJ 868 (LC); 1998 4 BLLR 408 (LC) (Oconbrick); Mondi Paper (A Division of
Mondi Ltd) v Paper Printing Wood and Allied Workers Union (1997) 18 ILJ 84 (D) (Mondi Paper); and Ex Parte
Consolidated Fine Spinners and Weavers Ltd (1987) 8 ILJ 97 (D) ( Consolidated Fine Spinners ); and decisions
rejecting the requirement of a link in certain situations include Woolworths (Pty) Ltd v SA Commercial Catering
& Allied Workers Union 2006 27 ILJ 1234 (LC); 2006 JOL 16643 (LC) (Woolworths) and Great North Transport
(Pty) Ltd v TGWU 1998 6 BLLR 598 (LC) (Great North Transport).
THERON J
10
applicant and the actual or threatened unlawful conduct.13 The applicants do not fault
Oak Valley for its inability to name the persons against whom it sought an interdict.
With that in mind, the first question for determination is whether our law as it stands
requires an applicant seeking a final interdict to establish a fact ual link between the
respondents against whom the interdict is sought and the actual or reasonably
apprehended unlawful conduct.
[18] The requirements for a final interdict are settled. An applicant for such an order
must show a clear right; an injury actually committed or reasonably apprehended; and
the absence of similar protection by any other ordinary remedy.14
[19] In a constitutional order, interdicts occupy a place of importance. In granting an
interdict a court enforc es “the principle of legality th at obliges courts to give effect to
legally recognised rights”.15 The purpose of injunctive relief is to “put an end to conduct
in breach of the applicant’s rights” .16 An interdict is intended to protect an applicant
from the actual or threatened unlawful conduct of the person sought to be interdicted.
Thus, for an interdict to be granted, it must be shown, on a balance of probabilities
(taking into account the Plascon-Evans rule,17 where final relief is sou ght on motion),
that unless restrained by an interdict, the respondent will continue committing an injury
against the applicant or that it is reasonably apprehended that the respondent will cause
such an injury .18 The requirement of a “reasonable apprehens ion of injury” was
explained by the then Appellate Division in Nordien:
13 In the circumstances, the applicants ’ reliance on cases which merely concern the improper identification of
respondents (such as The City of Cape Town v Yawa 2004 JDR 0074 (C); 2004 2 All SA 281 (C) (Yawa)) does
not take the matter much further.
14 Setlogelo v Setlogelo 1914 AD 221 at 227. Injury in this sense means an unlawful infringement (actual or
threatened) of the applicant’s clear right.
15 Hotz v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA); 2016 4 All SA 723 (SCA) (Hotz
SCA) at para 39.
16 Id at para 36.
17 Plascon-Evans Paint Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A)
(Plascon-Evans) at 634E-635C.
18 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008
(5) SA 339 (SCA) at para 21.
THERON J
11
“A reasonable apprehension of injury has been held to be one which a reasonable man
might entertain on being faced with certain facts. The applicant for an interdict is not
required to establish that, on a balance of probabilities flowing from the undisputed
facts, injury will follow: he has only to show that it is reasonable to apprehend that
injury will result. However, the test for apprehension is an objective one. This means
that, on the basis of the facts presented to him, the Judge must decide whether there is
any basis for the entertainment of a reasonable apprehension by the applicant.”19
[20] Plainly, if the evidence is insufficient to establish a ny 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. But this does not provide a
complete answer to the present appeal. What must also be determined is whether mere
participation in a strike, protest or assembly, in which there is unlawful conduct, suffices
to establish the required link.
[21] If so, inevitably, innocent participants in strike or protest action will sometimes
get caught in the net of an interdict. The Labour Appeal Court was satisfied that this
prejudice is mitigated by the fact that the interdict would “serve only as a starting
point”.20 It explained:
“If there was a contempt application brought on the basis of conduct in breach of the
order so granted, it would have to be shown with greater precision that a specified
individual had the necessary mens rea to breach the order of court. In short, a bystander
who had not breached the picketing rules would have nothing to fear from an order
being so granted in that his or her conduct would not have been in breach of the order.
No illegal act had been perpetrated by such a person. To be in contempt, it would also
have to be shown that the respondent had knowledge of the order and its contents.”21
19 Minister of Law and Order v Nordien 1987 (2) SA 894 (A) (Nordien) at 896G-I citing with approval Nestor v
Minister of Police 1984 (4) SA 230 (SWA) at 244.
20 Labour Appeal Court judgment above n 1 at para 29.
21 Id.
THERON J
12
[22] This, however, fails to answer the concern regarding innocent bystanders. A
person is interdicted from engaging in unlawful conduct because the applicant has a
reasonable apprehension that she will act unlawfully if not placed under interdict. This
reasonable apprehension is based on a finding that the respondent has either acted
unlawfully or threatens to act unlawfully. The innocent bystander thus suffers prejudice
regardless of whether she subsequently escapes conviction in a contempt application.
This prejudice lies in the imputation that she has acted unlawfully or threatened to act
unlawfully. This is a serious imputation, which is borne out by extensive litigation
brought by interdicted parties seeking, in essence, to clear their name.22
[23] In addition, 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.
[24] In Mlungwana, this Court held that the criminalisation of the assembly of more
than 15 persons without notice had a “‘calamitous effect’ on those caught within its net”
and that the “deleterious consequences of criminalisation severely discourage – and thus
limit – the exercise of [the right to protest]”. 23 Notably, this Court also acknowledged
that the chilling effect of criminal sanction “extend s beyond those who conve ne
assemblies without notice” and that “people may be deterred from convening a
22 See for example Hotz above n 11 and Rhodes University v Student Representative Council of Rhodes University
2016 JDR 2239; 2017 1 All SA 617 (ECG) (Rhodes University), the latter of which was pursued on appeal in this
Court in Ferguson v Rhodes University [2017] ZACC 39; 2017 JDR 1768 (CC); 2018 (1) BCLR 1 (CC).
23 Mlungwana v S [2018] ZACC 45; 2019 (1) SACR 429 (CC); 2019 (1) BCLR 88 (CC) at para 87.
THERON J
13
gathering and prospective attendees might be dissuaded lest they too be deemed to have
convened the gathering without notice”.24 In short, even those who intend to strike in a
lawful manner might be discouraged from so doing out of fear of being deemed to have
acted unlawfully if interdictory relief is granted too readily.
[25] Accordingly, w hile the “so what?” argument suggested by the
Labour Appeal Court has intuitive appeal, it offers no answer to the contention that the
indiscriminate granting of interdicts prejudices innocent parties and, potentially, has a
chilling effect on the exercise of their constitutional right to strike.
The requirement of a link: case law
[26] The cases make it clear that one of the inquiries undertaken by a court asked to
grant a final interdict is a careful assessment of whether the injury committed or
apprehended can be attributed to the conduct of the respondent. In Hotz SCA, the
University of Cape Town contended that the evidence established that the student
respondents “had all been active participants in the protests and had not disavowed any
of the conduct of the protestors ”.25 In reaching its decision to grant a final interdict
against the students, the Supreme Court of Appeal 26 considered the factual allegations
made against each student and the grounds advanced for why the University was entitled
to an interdict against them.27 It concluded that the evidence in respect of each student
disclosed that they were engaged in or parties to unlawful conduct that included the
24 Id at para 88.
25 Hotz SCA above n 15 at para 34.
26 Whose decision, save on the issue of costs, was confirmed by this Court. See Hotz above n 11.
27 See, for example, para 75 of Hotz SCA above n 15, where the Court concluded:
“Given the vehemence with which the appellants expressed their complaints against the
university and its management it was probable that they would have continued their protest and
the actions related to it if able to do so. (The interim interdict excluded them from the campus,
which precluded that.) In the absence of any undertaking from the appellants not to repeat the
conduct described above, the university had a reasonable apprehension that unless an interdict
was granted the students would continue wi th conduct of the same type in breach of its rights.
Accordingly, the first two requisites for a final interdict were established.”
THERON J
14
destruction of university property.28 By implication, it rejected the contention that mere
participation in protest action, in which there is unlawful conduct, is sufficient to expose
a person to interdictory relief.29
[27] Likewise, in Rhodes University , the High Court engaged in a painstaking
analysis of each student’s involvement in the unlawful conduct in order to determine
what relief, if any, could be granted against them.30
[28] Is the position any different in cases where an interdict is sought against workers
engaged in strike action? A conspectus of jurisprudence from the High Court and
Labour Court reveals that courts have held steadfast to the requirement of a sufficient
link between the respondent sought to be placed under interdict and the alleged unlawful
conduct committed or apprehended, even within the context of strike action.
[29] The applicants placed considerable reliance on Consolidated Fine Spinners and
Mondi Paper, both High Court decisions which confirm that an interdict ought not to
be granted against a striking worker in circumstances where the worker cannot be linked
to the unlawful conduct complained of. In Consolidated Fine Spinners, the employer
was unable to identify the individual perpetrators of the alleged unlawful acts and
instead sought to interdict the individual respondents on the basis that they were all
employees who had not yet returned to work. The employer conceded that the
respondents cited may well have included persons who were not in fact engaged in
strike action or involved in any of the conduct sought to be interdicted but contended
28 Hotz SCA id at para 70.
29 Id at para 40.
30 Rhodes University above n 22 at paras 95 and 146-7. The Labour Appeal Court took the view that—
“neither the judgment in Hotz nor in Rhodes University supports the argument raised on behalf
of the appellants, namely that it was impermissible to grant an order against the various
individual employees, notwithstanding that some of t hem may not have comported themselves
illegally”.
This assessment is difficult to square with the judgments in Hotz SCA and Rhodes University, which took great
pains to evaluate the extent to which each of the students under interdict had engaged in unlawf ul conduct.
THERON J
15
that it was practically impossible for it to identify the individual perpetrators. The
High Court refused to grant the interdict on the basis that the employer had not
established a cause of action against the individual respondents. Notably, the Court
appeared open to counsel’s suggestion that individual respondents could be interdicted
on the basis of their me mbership of a group that had acted unlawfully. 31 Ultimately,
however, it concluded on the facts before it that the employer had not laid a factual basis
for inferring that the individual respondents were members of such a group , as it was
clear that the only reason they were cited by the employer was that they had not returned
to work. It therefore concluded that “[t]he only fact which is common to all the
respondents is that they stayed away from work yesterday” and there was no proof that
they were otherwise linked or that they had collectively engaged in unlawful conduct.32
[30] In Mondi Paper, the High Court held that a rule nisi against a union and certain
individual employees fell to be discharged “ by virtue of the failure of th e applicant to
identify any of the respondents and link them with the alleged acts of intimidation and
sabotage”.33 Nicholson J reasoned:
“The evil of intimidation of employees by striking workers and the unlawful
blocking of transport to company premises can never be condoned. Juxtaposed
against that evil is that of a court granting orders against ‘innocent
non-participants’ without evidence. The latter evil seems to me to outweigh the
former. It seems to me that the whole court system will lose the re spect of the
public at large if it grants orders against ‘innocent non-participants’.”34
[31] The principles espoused in Consolidated Fine Spinners and Mondi Paper were
endorsed in subsequent decisions of the Labour Court and High Court.35 In Oconbrick,
the employer asked the Labour Court to discharge a rule nisi interdict against a union
31 Consolidated Fine Spinners above n 12 at 99A-B.
32 Id at 99B-C.
33 Mondi Paper above n 12 at 90H-I.
34 Id at 93A-B.
35 Oconbrick above n 12; Absa Bank v SACTWU above n 12; and Makhado above n 12.
THERON J
16
and certain named members of the union who had embarked on a protected strike, since
the relevant strike had ended, but sought an order for costs . The union resisted the
prayer for costs on the basis that apart from one isolated individual, the employer had
failed to identify any particular individual respondents as having engaged in unlawful
conduct and the rule nisi ought therefore not to have been granted in the first place. The
Labour Court accepted that the effect of the decisions in Consolidated Fine Spinners
was that—
“an interdict ought not to be ordered against a group of striking workers in
circumstances where individuals who form part of that group make themselves
guilty of conduct which is unlawful, unless and until the individual perpetrators
of that conduct are identified before court. Such an interdict ought only to be
granted it follows against workers so identified.”36
[32] Ultimately, the Court found that the matter was distinguishable on the facts from
Consolidated Fine Spinners because the respondents before it “formed a cohesive
group” and it was “uncontested that the individual respondents, acting as a group and
in concert, obstructed access to the applicant's premises”. 37 The Court found that
“[t]hese were not isolated and individual unlawful acts, but consci ous acts of striking
workers acting in concert”.38 Pretorius AJ explained that these conclusions were based
on inferences drawn from common cause facts and photographic evidence.39
[33] In Makhado, the Labour Court refused to grant a final interdict against str iking
workers, because the applicant’s case against the striking workers “amount[ed] to a
number of unsubstantiated conclusions regarding alleged threatening or intimidatory
behaviour, without any particularity supplied, or perpetrator identified”. 40 The Court
36 Oconbrick id at para 16.
37 Id at para 18.
38 Id.
39 Id at para 19.
40 Makhado above n 12 at para 23.
THERON J
17
also concluded that the workers could not be interdicted in the absence of evidence
identifying them as a prospective perpetrator or accomplice in the acts of a perpetrator.41
[34] Perhaps the most persuasive authority for the requirement of a link is to be found
in Polyoak, where the Labour Court emphatically held that an interdict can only be
granted against a respondent when a link has been established between the respondent
and the actual or threatened unlawful conduct. It held:
“Generally speaking, a person can only be restrained by interdict if the evidence
demonstrates that, as a matter of probability, he or she will commit the act in question
within the period encompassed by the proposed order. The conclusion is competent
when the evide nce shows that person has undertaken or agreed to commit the act or
that an inference to this effect can be drawn from the fact that he or she has previously
done so. In the absence of evidence identifying the respondent as a prospective
perpetrator or ac complice in the acts of a perpetrator, however, he or she cannot be
interdicted, and it matters not that the person is one of a group of strikers containing
malefactors or that his or her interests as striker happen to be promoted by the
wrongdoing in question. Our law knows no concept of collective guilt.”42
[35] Brassey AJ decried an increasingly common litigation strategy in which
employers seek rule nisi interdicts against striking workers without laying a proper
factual basis for that relief:
“In support of the application, affidavits are generally filed by a member of
management and by eyewitnesses to acts of misconduct. Specific acts of misconduct
are normally referred to but only sometimes attributed to specific individuals.
Allegations are frequently made against ‘the individual respondents’ as a class when it
is clear from the context that the participation of every one of them is, if not
inconceivable or impossible, then at least highly improbable. Hearsay evidence is
commonly included for the adm ission of which no basis is laid in the papers, and
41 Id at para 24.
42 Polyoak above n 12 at 395H-B. This dictum has been cited with approval in subsequent decisions, including
Makhado above n 12 at para 24.
THERON J
18
allegations in support of such matters as balance of convenience and claims of urgency
are quite often cursory and sometimes wholly overlooked.”43
This description, with a few alterations, aptly describes the case made out by
Oak Valley in this matter.
[36] Importantly, in Polyoak, Brassey AJ went on to hold that, in that case,
interdictory relief was competent because “[t]he allegation [was] pertinently made that
[the respondents] ‘either directly or through association and instigation have rendered
themselves guilty of the criminal conduct’ complained of’”.44
[37] There has, however, not been unanimity in the Labour Court on this issue. The
most striking outlier in this regard is Great North Transport, where the Labour Court,
despite expressly finding that the applicant had not linked any of the 166 individual
respondents to unlawful conduct, nevertheless confirmed a rule nisi interdict against
them. The Court reasoned that it had “found that there [had] been a number of incidents
of harassment and intimidation and that members of the first respondent were involved
in them”, but that there was no acceptable basis on the papers for it “to conclude that
all 166 cited members [had] been thus involved and, therefore, no basis for determining
which of them may not have been involved at all.” 45 To resolve this “dilemma”, the
Court decided to take “a robust and practical approach geared to the promotion of the
object of ‘labour peace’ and ‘the effective resolution of labour disputes’ as set out in
section 1 of the [L abour Relations Act ]”.46 The Court confirmed the rule nisi
“notwithstanding the anomaly that [the Court was] not satisfied that each of the 166
individual respondents [had] been positively demonstrated to have made himself a party
to the misconduct”. 47 Notably, the Labour Court did no t refer to Consolidated Fine
43 Id at 394E-H.
44 Id at 397A-H.
45 Great North Transport above n 12 at para 30.
46 Id at para 32.
47 Id at para 34.
THERON J
19
Spinners or Mondi Paper, and I have found no case in which the High Court or
Labour Court has endorsed this decision or adopted such a robust approach.
[38] The other outlier is Woolworths, where it was noted that “[t]he Labour Court has
always been, and probably always will be, sympathetic to employers in a situation
where violence has erupted during a strike” and would “readily grant interdicts” against
such behaviour. 48 While the Court accepted, in rather vague terms, that striki ng
employees against whom an interdict is sought must be “properly identified”, the Court
remarked that it would have been prepared to grant interdicts against impugned
employees “if just a few names were put forward” and if it were satisfied that “at leas t
some specific individuals . . . have been shown to behave in a certain way”.49 As in
Great North Transport, the Labour Court did not cite authority for this approach.
Conclusion on the requirement of a link
[39] Faced with this conspectus jurisprudence, it seems that, notwithstanding the
“fraught context of industrial relations”, our law requires that for interdictory relief to
be competently granted, a factual link between an individual respondent and the actual
or threatened unlawful conduct must be shown. Of course, this Court is not bound by
decisions of the High Court and Labour Court, but they nonetheless provide persuasive
authority. They are also consistent with the requirement that a reasonable apprehension
of injury must be shown in order to obtain interdictory relief. Protest or strik e action
cannot, without more, give rise to a reasonable apprehension of injury.
[40] In addition, the line of cases detailed , with the exception of Great North
Transport and Woolworths, cohere with the jurisprudence of this Court. In Garvas,
citing the European Court of Human Rights with approval, this Court held:
48 Woolworths above n 12 at para 5.
49 Id at para 7.
THERON J
20
“[A]n individual does not cease to enjoy the right to peaceful assembly as a result of
sporadic violence or othe r punishable acts committed by others in the course of the
demonstration, if the individual in question remains peaceful in his or her own
intentions or behaviour.”50
[41] Where a person lawfully exercises their right to protest, strike or assemble, but
is nonetheless placed under interdict, that person’s constitutionally protected rights are
impermissibly denuded. It matters not that the person might subsequently escape
liability in contempt proceedings.
[42] Two important principles can be distilled from this Court’s jurisprudence, and
this line of cases. First, mere participation in a strike, protest, or assembly, in which
there is unlawful conduct, is insufficient to link the impugned respondent to the
unlawful conduct in the manner required for interdictory relief to be granted. Second,
the necessary link can however be established where the protesters or strikers commit
the impugned unlawful conduct as a cohesive group. Whether this is established will,
of course, turn on the particular facts of the case. Where, for instance, 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 apprehended that they will cause injury to the applicant.
By contrast, where a protest or strike is substantially peaceful, but there are isolated and
sporadic instances of unlawful conduct, only those protesters who associate with those
acts of unlawfulness can permissibly be placed under interdi ct. In addition, 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 applican t has a reasonable
apprehension that the participants in the strike will cause it injury.
50 South African Transport and Allied Workers Union v Garvas [2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8)
BCLR 840 (CC) (Garvas) at para 53. In Mlungwana, above n 23 at para 55, this Court, endorsing Garvas, added
that for so long as a person exercis ing her constitutional right to strike “act[s] within the parameters prescribed
for the exercise of this important right they will be assured of constitutional protection”.
THERON J
21
[43] Regrettably, the law reports are replete with cases involving employers besieged
by unlawful conduct catalysed by strike action. 51 Judgments of the Labour Court
describe a scourge of strike related misconduct52 that represents “a blight that has come
to characterise the South African industrial relations landscape”.53 They lament that the
Labour Court has been “inundated by applications by employers seeking to interdic t
and stop unlawful conduct, violence and intimidation in the course of protected strike
action”.54 At the same time, courts have warned that interdict proceedings are
susceptible to abuse by employers with ulterior motives55 and that granting relief against
striking workers too readily can undermine collective action. 56 And, as the
Labour Court remarked in Polyoak, if interdicts are granted against striking workers
indiscriminately and without due process, their value as a me ans of upholding the rule
of law is debased.57 Indeed, as Lord Wedderburn noted, “[w]ithout scrupulous care by
the judiciary – and sometimes even with it – the interlocutory labour injunction can
become a great engine of oppression against workers and their unions”.58
[44] The requirement of a link, which has, save for a few instances, been consistently
applied by our courts, appropriate ly balances these conflicting interests. On the one
51 See for example: Dis-Chem Pharmacies Limited v Malema 2019 40 ILJ 855 at para 13; Tsogo Sun Casinos
(Pty) Ltd t/a Montecasino v Future of SA Workers Union 2012 33 ILJ 998 (LC); 2012 JOL 28755 (LC) at paras 4
and 11-3; and National Union of Food Beverages v Universal Product Network 2016 37 ILJ 476 (LC); 2015 JOL
34910 (LC) at para 37. In GRI Wind Steel South Africa v Association of Mineworkers and Construction Union
(2018) 39 ILJ 1045 (LC) ; 2018 3 BLLR 273 (LC) ( GRI Wind Steel ) the Court lamented at para 1 that the
application arose—
“in the all too common South African context of a protected strike turning violent; striking
workers committing violent and unlawful acts; and the SA Police Service standing idly by,
playing an observer’s role without arresting a single perpetrator.”
52 KPMM Road and Earthworks (Pty) Ltd v Association of Mineworkers and Construction Union (2018) 39 ILJ
609 (LC); 2019 JOL 43092 (LC) (KPMM Road) at paras 5-6; and GRI Wind Steel id at para 1.
53 Ram Transport SA (Pty) Ltd v SA Transport and Allied Workers Union (2011) 32 ILJ 1722 (LC) ; 2011 JOL
26805 (LC) at para 9.
54 KPMM Road above n 52 at para 5.
55 Midlands Pine Products (Pty) Ltd v Chemical Energy Paper Printing Wood and Allied Workers Union (2002)
23 ILJ 2276 (LC); 2002 12 BLLR 1200 (LC) at paras 17 and 25.
56 See Plascon Evans Paints (Natal) Ltd v Chemical Workers Industrial Union (1987) 8 ILJ 605 (D) at 695.
57 Polyoak above n 12 at 394A-B.
58 Wedderburn The Worker and the Law 3 ed (Sweet & Maxwell Ltd, London 1986) at 686.
THERON J
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hand, it ensures that interdicts are not granted indiscriminately. On the other, it affords
employers the required measure of protection. The requirement does not entail that an
employer must lead direct evidence establishing conclusively that the interdicted
employee was responsible for specific unlawful conduct. The employer could discharge
its onus by putting up facts from which an inference can be drawn that it is more
probable than not that the employee herself engaged in unlawful conduct or associated
herself with it.
[45] As the High Court noted in Mondi Paper, “the production of proper proof either
directly or by circumstantial evidence is not beyond the ingenuities of employers, given
the modern technology that is available” to them.59 Likewise, in Durban University of
Technology, the High Court remarked that—
“with the modern methods of access control, CCTV cameras, etc, there is ample
opportunity for the applicant’s security services to be able to identify those persons
who were on the campus when the violence occurred, and steps could be taken to
identify them”.60
Does the evidence establish the required link?
[46] Where disputes of fact arise on the affidavits, a final order can be granted only
if the facts averred in the applicant’s affidavits, which have been admitted by the
respondent, together with the facts a lleged by the latter, justify such an order.61 Of
course, “ [i]t may be different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far -
fetched or so clearly untenable that t he court is justified in rejecting [that version]
merely on the papers”.62
59 Mondi Paper above n 12 at para 93B-C.
60 Durban University of Technology v Zulu 2016 JDR 1284 (KZP) at para 27.
61 Plascon-Evans above n 17 at 634E-635C.
62 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (4) BCLR
393 (SCA) at para 26.
THERON J
23
[47] There are instances, like here, where this Court is required to determine factual
disputes in order to appropriately dispose of the case before it. 63 In an appeal to this
Court emanating from an action, the court of first instance enjoys an advantage in
respect of its determination of the facts 64 as it hears oral evidence and is best placed to
assess the demeanour of witnesses. 65 For this reason, in action pro ceedings, save in
narrowly specified circumstances, we defer to the factual findings of the lower court. 66
By contrast, in motion proceedings decided on the papers , the lower courts enjoy no
such advantage and we owe no deference to the lower court’s factual findings. As this
Court held in Railway Commuters:
“Where an applicant seeks constitutional relief, and there is a dispute of fact on the
papers before the Court, the identification of the facts upon which the constitutional
matter should be adjudicat ed constitutes an issue connected with a decision on a
constitutional matter which falls within this Cou rt’s jurisdiction. In such
circumstances, this Court is not bound by the facts as determined by the Supreme Court
of Appeal in its application of the r ule as stated in Plascon-Evans.”67 (Emphasis
added.)
To the extent that the Labour Court and Labour Appeal Court made factual findings
about the connection of the respondents to the alleged unlawful conduct, we are
accordingly not bound by those findings.
63 For an example of another such case, see Mashongwa v PRASA [2015] ZACC 36; 2016 (3) SA 528 (CC); 2016
(2) BCLR 204 (CC).
64 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC) at para 106.
65 Id.
66 Id; see also Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at
para 39.
67 Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC); 2005 (4)
BCLR 301 (CC) (Railway Commuters) at para 53.
THERON J
24
The case against the second to 174th applicants
[48] When Oak Valley initially brought its application for urgent relief, it made a case
against CSAAWU, the Individual Respondents (then comprising 364 striking workers,
including the second to 174 th applicants) and the Unidentifiable Respondents (who
were members of the public). By the time Oak Valley filed its replying affidavit, it had
abandoned its case against 191 of the Identifiable Respondents. In this Court, we are
asked to determine only whether a final interdict ought to have been granted against
CSAAWU and the second to 174th applicants.
[49] In both its founding and replying affidavits, Oak Valley referred to video
footage, photographs, and audio recordings which it claimed would provide proof that
at least some of the Individual Respondents were involved in or associated with the
unlawful conduct. Oak Valley indicated that it would make this evide nce available to
the Court but there is nothing in the Labour Court or Labour Appeal Court judgments,
or in the applicants’ founding affidavit in this Court, which suggests that Oak Valley
made any video footage or audio recordings available to either court. In its judgment,
the Labour Court refers to photographs made available by Oak Valley, but does not say
what those photographs depicted and, crucially, whether Oak Valley had identified the
persons in the photographs. And, despite allegedly having these incriminating materials
at the ready when it filed its founding affidavit, it was only in its replying affidavit that
Oak Valley eventually identified specific persons who had been captured in a handful
of photographs. As for Oak Valley’s claim that it had made video footage available to
the applicants’ attorneys, the correspondence evidencing this is not before this Court
and cannot be verified.
[50] In summary, Oak Valley’s case on the facts amounted to the following. At the
outset, it made the genera l allegation in its founding affidavit that the Individual
Respondents (who included the second to 174 th applicants in this Court and many
others) had been “involved in the unlawful conduct and criminal acts referred to
hereafter more fully to varying degrees”. The conduct of the Individual Respondents
allegedly consisted of: preventing access to and from Oak Valley’s property; causing
THERON J
25
damage to its property and the property of other persons on Oak Valley’s premises;
intimidating and assaulting Oak Valley’s employees; obstructing the N2 highway at
Grabouw; and engaging in other unlawful acts and criminal conduct during the strike.
These allegations appear to have been amplified later in the founding affidavit but are
then made against “the Respondents” (comprising both the Individual and
Unidentifiable Respondents). As indicated, Oak Valley made allegations in relation to
specific individuals in its replying affidavit.
[51] The applicants contended that Oak Valley “had not connected any of the
respondents with the conduct they [sought to be] interdicted” and they denied that the
Individual Respondents had or were engaged in unlawful conduct. They noted that the
contents of the respondents’ affidavit “consist[ed] mainly of unsubstantiated hearsay
evidence which is not true”, that the deponent had “liberally generalised” and “failed to
disclose what allegations in the affidavit had come from sources who wish to remain
anonymous”. The applicants do not deny that the unlawful conduct complained of
occurred. I nstead, they contend that Oak Valley had failed to identify which of the
Individual Respondents (and, more specifically, which of the second to 174th applicants
in this Court) were guilty of unlawful conduct.
[52] A careful analysis of the allegations of unlaw ful conduct made by Oak Valley
bears this out. Because the order granted by the Labour Appeal Court, which is the
subject of this appeal, does not cover breaches of the Picketing Rules or the conduct of
members of the public in the Grabouw area more gener ally, I do not deal with the
allegations Oak Valley has made in relation to those issues.
Arson allegedly committed by five unnamed men
[53] It was alleged that five unnamed men entered Oak Valley’s farm and attempted
to set fire to the veld at two separate pl aces. Oak Valley averred that there was video
footage and intimated that it would institute disciplinary proceedings against the
employees involved, but inexplicably did not name the se individuals in either its
THERON J
26
founding affidavit or replying affidavit. W hile Oak Valley does annex photographs
depicting evidence of “arson by unidentifiable strikers”, the photographs show only
scorched earth. This evidence fell woefully short of establishing the required link.
Damage to Oak Valley vehicles
[54] Oak Valley alleged that during the evening of 5 May 2019 , one of its delivery
trucks was “ stoned, causing a window of the truck to shatter”. Oak Valley did not
provide the name of any person or ascertainable group of persons that were linked to
the incident. There is, however, a more specific allegation that on 9 May 2019, a
delivery truck driven by Mr Japie Nel, one of Oak Valley’s employees, was “pummelled
with rocks while driving on the N2 highway”. In the applicants’ answering affidavit,
Mr Karel Swart, CSAAWU’ s National Organising Secretary , said that he had “no
knowledge” of these events and that Oak Valley had provided “insufficient particularity
for the named respondents to respond” to the allegation. Oak Valley’s counter, in its
replying affidavit, was that on 28 May 2019, before the applicants filed their signed
affidavit, its attorneys sent the applicants’ attorneys a voice recording via WhatsApp in
which Mr Nel identified Zamekile Nomganga ( 41st applicant in this Court) as one of
the persons who had thro wn stones at the vehicle. This allegation was made in reply
and in the absence of a confirmatory affidavit by Mr Nel or a transcript of the recording.
Oak Valley indicated that the voice recording would be made available to the Court,
but, as indicated above, there is nothing in the record to suggest that this was done.
While in urgent proceedings, the rule that an applicant cannot make out its case in reply
may sometimes be relaxed, 68 the allegations concerning Zamekile Nomganga in any
event amounted to inadmissible hearsay evidence. Accordingly, Oak Valley failed to
link the second to 174th applicants to the damage of its vehicles.
68 Polyoak above n 12 at 395D.
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27
Intimidation
[55] Oak Valley alleged several incidents of unlawful intimidation of its employees.
It alleged that on 5 May 20 19, one of its managers received calls from a farm worker
advising that workers living on the Oak Valley Farm were receiving intimidating
telephone calls and text messages threatening them not to work on 6 May 2019. It also
alleged that on the day the str ike commenced, Oak Valley’s employees were again
threatened to not attend work, that access to Oak Valley’s premises was impeded and
that employees attempting to attend work were prevented from so doing. Further acts
of intimidation were alleged to have o ccurred on 10 May 2019. Oak Valley said that,
on this day, temporary workers it had enlisted to harvest fruit were unable to report for
work, because they “had been threatened with physical harm if they were to work at
[Oak Valley]”. It also said that one of its employees, Mr Pieter Fielies, was “forced to
return home as some of the respondents threatened to damage his car if he went to
work”. Oak Valley further alleged that on 14 May 2019, the “[r]espondents intimidated
[Oak Valley’s] employees who wanted to work” and Oak Valley’s security manager,
Mr Johann le Roux, advised Oak Valley’s manager, Mr Gerco Engelbrecht, that the
“[r]espondents were intending to throw rocks at Johann le Roux’s vehicle and set it
alight”. Finally, in a confirmatory affidavit, Mr le Roux stated that a member of a group
of striking workers threatened “today you will burn”, while other members of the group
made gestures indicating that he would be executed.
[56] The common thread in these allegations is a total absence of specificity. In
particular, Oak Valley failed to explain who had made the alleged threats, via telephone
call, text message or otherwise, and failed to annex the text message s to its founding
affidavit. No confirmatory affidavit was pr oduced to confirm the allegations
concerning Mr Fielies , and these allegations therefore amounted to inadmissible
hearsay. As for Mr le Roux, it is inexplicable why he was unable to identify at least
some of the implicated striking workers. While certain of these workers were alleged
to be wearing balaclavas, Mr le Roux did not say that this was the case for all of th e
workers, or even those who made the threats. The allegations concerning these acts of
intimidation therefore fell short of linking the applicants to the unlawful conduct.
THERON J
28
[57] In reply, and in the face of the applicants’ strenuous denial of the allegations of
intimidation, Oak Valley alleged , and Mr Engelbrecht confirmed by way of a
confirmatory affidavit, that he was “informed by workers who wished to work that they
were not able to do so because their lives had been threatened and they were told their
houses would be burnt down”. It said that it could not disclose the names of the
employees who had provided this information because it needed to preserve their
confidentiality. It failed to explain, however, why it could not disclose the names of the
persons who had allegedly made the threats and there is, in any event, no explanation
why Oak Valley did not take steps to introduce the details of these allegations as
evidence, in a manner that could have protected the confidentiality of the employees.
Oak Valley also failed to explain whether the threats were communicated by one person
or a group of persons, and whether the threats were communicated in person or via text
message or phone call.
[58] Oak Valley referred , in its replying affidavit , to video footage which revealed
strikers attempting to dissuade Oak Valley employ ees from working . However, as
indicated above, there is nothing in the judgments of the Labour Court or Labour Appeal
Court suggesting that this footage was indeed made available and that Oak Valley
identified any of the second to 174th applicants in the footage. In its replying affidavit,
Oak Valley complained that the applicants had not taken the opportunity “to scrutinise
the video material which [was made] available on which certain of the individuals in
question [could] be identified”. This is a baf fling complaint: if the persons in the
footage were indeed striking workers, why did Oak Valley staff not view the footage
and identify them? And if the second to 174th applicants were involved in unlawful
intimidation, the employees and workers who had b een intimidated would have been
intimidated by co-workers known to them and Oak Valley.
THERON J
29
Photographic evidence
[59] It appears that only a handful of photographs were made available to the
Labour Court as annexures to Oak Valley’s founding affidavit . A news article which
included photographs was also annexed to Oak Valley’s replying affidavit. Oak Valley
alleged that the photographs depict picketing outside of the area designated in the
Picketing Rules; the wearing of balaclavas and masks; “interference” wit h Oak Valley
security at the entrance of the Farm; protest action in front of the police station; and
damage to one of Oak Valley’s delivery trucks which occurred on Ou Kaapse Weg,
approximately four kilometres from the picketing area. Leaving aside the photographs
which merely depict breaches of the Picketing Rules, as opposed to unlawful conduct
relevant for present purposes, all that the photographs reveal is that Oak Valley’s
vehicle was damaged (the applicants have at no stage denied this) and that there was an
unauthorised fire on its property. For this reason alone, Oak Valley’s eventual attempt
to link specific individuals to the photographs, made in reply , and which in any event
was incomprehensible, took its case no further.
Allegation regarding Mr Nikelo Magaba
[60] In Oak Valley’s founding affidavit reference is made to a 15 May 2019 news
report during which Mr Nikelo Magaba ( 23rd applicant) “stated that if the demands of
the respondents were not met, they would force their way on to the premises” and “kill”.
The applicants did not squarely address the allegation against Mr Magaba in their
answering affidavit and did not present an affidavit from Mr Magaba.
The case against CSAAWU
[61] Oak Valley alleged in its founding affidavit in the Labour Court that on
13 May 2019, Mr Swart was arrested on charges of public violence. Oak Valley said
that this was “clear proof of [CSAAWU’s] active role in supporting the strikers . . . not
only in their strike but also in their unlawful and criminal acts in furthera nce of the
strike”. It also annexed an email from Mr Swart in which he advised Oak Valley that
“the emotion and the frustration [was] running very high” and the strike would “spill
THERON J
30
over in the community”. Mr Swart’s response was that he had met with work ers in an
open field about a kilometre from the Siyanyanzela Informal Settlement to provide
feedback on CSAAWU’s request that the municipality intervene in the strike. He said
that, thereafter, he was followed and arrested by the police who said that he had “incited
violence by inciting the workers not to go to work” and that he was subsequently
charged with intimidation.
Conclusion on the case made out against CSAAWU and the second to 174th applicants
[62] The allegations made by Oak Valley in its founding affidavit were so vague that
it was simply not possible for the applicants to respond to them and offer substantiated
denials. While Oak Valley may have made allegations of specific instances of unlawful
conduct, it did not allege that any person o r sub-group within the striking workers was
responsible for this conduct , had associated with it or even failed adequately to
dissociate with it. In effect, the allegations made by Oak Valley amounted to: (a) certain
unlawful conduct took place and (b) the Individual Respondents together with
unidentifiable members of the public were responsible.
[63] The allegations against Mr Magaba stand on a different footing. His incendiary
remarks created the reasonable apprehension that he would cause harm to Oak Valley,
and linked him to the ongoing unlawful conduct. The applicants failed to squarely
address Mr Magaba’s alleged conduct in their answering affidavit. These allegations
therefore stand uncontroverted and the interdict against him should be confirmed.
[64] Likewise, Mr Swart’s arrest for intimidation linked both him and CSAAWU to
the ongoing unlawful conduct or, at a minimum, to the threatened unlawful conduct.
Mr Swart was both a CSAAWU leader and its mouthp iece during the strikes. He also
admitted to being present at the picketing site on several occasions. His arrest occurred
in the midst of ongoing common cause acts of unlawfulness on Oak Valley’s property,
and numerous instances of alleged intimidation of its employees. In that context,
Oak Valley’s fear that Mr Swart and CSAAWU would intimidate its workers, or
THERON J
31
encourage unlawful activity, could hardly be faulted as unreasonable. Of course, we do
not know the veracity of the charges against Mr Swart. But to require Oak Valley to
establish this would indeed be “a bridge too far”.
[65] Accordingly, save for CSAAWU and the 23rd applicant, Oak Valley failed to
draw the require d link between the applicants and the unlawful conduct. It therefore
failed to show that it had a reasonable apprehension that it would suffer injury at the
hands of these applicants if they were not placed under interdict.
[66] In the se circumstances, while I understand that Oak Valley was exposed to
unlawful conduct, and have sympathy in th is regard, it has made exactly the sort of
tenuous case which Brassey AJ said in Polyoak ought not to sustain a final interdict.
Save in respect of Mr Magaba and CSAAWU, the ineluctable conclusion is that the
appeal must succeed.
Costs
[67] The Labour Court made no order as to costs given the ongoing relationship
between the parties, and I see no reason to interfere with this order. That order was also
confirmed by the Labour Appeal Court but, s urprisingly, in respect of the application
before that Court, Oak Valley was mulcted with costs because CSAAWU succeeded in
its appeal of the Labour Court’s order as to the Picketing Rules. No explanation was
given for this order, but it seems that the Labour Appeal Court applied the rule that costs
follow the result. This part of the Labour Appeal Court’s order has not been appealed
and we are therefore not at large to interfere with it. I thus note only that, as this Court
has held on various occasions, costs do not usually follow the result in labour matters.69
In this Court, Oak Valley has not opposed the application, and there is therefore no
compelling reason why it should be mulcted in costs.
69 Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd
[2021] ZACC 26 at para 42; South African Commercial, Catering and Allied Workers Union v Woolworths (Pty)
Limited [2018] ZACC 44; 2019 (3) SA 362 (CC); 2019 (3) BCLR 412 (CC) at para 60; and Zungu v Premier of
the Province of KwaZulu-Natal [2018] ZACC 1; 2018 (39) ILJ 523 (CC); 2018 (6) BCLR 686 (CC) at para 24.
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32
Conclusion
[68] The appeal substantially succeeds, except in respect of the orders granted against
CSAAWU and Mr Magaba.
Order
[69] In the result, the following order is made.
1. Leave to appeal is granted.
2. The appeal is upheld in part.
3. Save in respect of the 23rd applicant [Mr Magaba], paragraphs 2.1 and
2.3 of the Labour Appeal Court’s order are set aside.
4. There is no order as to costs in this Court.
For the Applicants: S Wilson and I De Vos, instructed by the
Socio-Economic Rights Institute