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[2020] ZALAC 51
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Congress of South African Trade Unions and Another v Business Unity of South Africa and Another (JA97/2019) [2020] ZALAC 51; (2021) 42 ILJ 490 (LAC); [2021] 4 BLLR 343 (LAC) (27 November 2020)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA97/2019
In the matter between:
CONGRESS OF SOUTH
AFRICAN
TRADE
UNIONS                                                                        First

Appellant
SOUTH AFRICAN SOCIETY
OF BANK
OFFICIALS, THE FINANCE
UNION                                          Second

Appellant
and
BUSINESS UNITY SOUTH
AFRICA

First Respondent
NATIONAL ECONOMIC AND
DEVELOPMENT
LABOUR
COUNCIL                                                                    Second

Respondent
Heard:
23 September 2020
Delivered:
27 November 2020
Summary:
Protest
action—Section 77 of LRA 1995—Requirements—Compliance
with—Notice to employer--- Section 77 envisages
the issuing of
a notice in terms of para (b)---When consideration of matter by
employer failed union issuing a para (d) 14 days'
notice of proposed
protest action.
Coram:
Davis JA, Jappie JA and Kathree-Setiloane AJA
JUDGMENT
DAVIS JA
Introduction
[1]
This appeal concerns the interpretation of
s 77 of the Labour Relations Act 66 of 1995 (the LRA). Accordingly,
this focusses the
court’s attention on the nature and scope of
the right of employees who are not engaged in essential services or
maintenance
services to take part in protest action.
[2]
On 25 September 2019, Rabkin-Naicker J
sitting in the court a quo ordered that the appellant had failed to
comply with the provisions
of s 77(1) of the LRA. Accordingly, any
person who took part in the intended protest action would not enjoy
the protection afforded
by s 77 of the LRA. Further, the learned
judge ordered that the appellant was interdicted and restrained from
proceeding with encouraging
or enticing employees to engage in the
intended protest action or any conduct contemplated or inference
thereof until such time
as they had complied fully with s 77 of the
LRA.
[3]
With the leave of the court a quo, the
appellant has approached this court on appeal.
Factual matrix
[4]
On 21 August 2017, the first appellant
issued a notice to the second respondent in terms of s 77(1) of the
LRA and notified the
former about possible protest action. In an
annexure to the notice, the first appellant set out the reasons for
the intended protest
action after describing what it considered to be
adherence to economic policies which it described as ‘neoliberal
or trickle
down’ economic policies. The annexure then contained
the following:
The
current wave of retrenchments is of great concern to society and not
only trade unions. One of the consequences of trickle
down economic
policies in the labor market is that employers must be allowed to
hire and fire workers any time and for any reason
including for
increasing their profits and it is this labour flexibility that has
played a major contribution in the dismissal
of workers and increase
in poverty. This philosophy is not consistent with ubuntu, SA’s
socio-economic challenges and the
need to rectify the legacy of
apartheid and colonialism… The maintenance of high levels of
profits and bonuses to executives
cannot be a fair reason for
retrenchments. SA is facing a jobs bloodbath. In terms of the broad
definition of unemployment 37%
of people are unemployed as at 2017.
The rate for Black Africans is 40.9%, Coloureds 28.9%, Indians 15.8%
and Whites is 8.5%. The
youth unemployment between 15 and 24 years is
about 66%. It is unacceptable that BRICS countries unemployment is
below 10%.”
[5]
The first appellant then issued a number of
demands for policy interventions included the following:
‘
As
a quid pro quo for government’s generous tax benefits and other
subsidies to private sector companies, companies must be
prohibited
from retrenching employees for the sake of profits and must be
required to create a certain number of jobs per year
and this must be
monitored by the CCMA.
Government
through Nedlac must convene an Economic and Jobs Summit within the
next three months after submission of this notice.
’
[6]
The first appellant concluded with the
following:
‘
Nedlac
will be advised of the precise nature of the protest action and the
date or dates upon which they will take place in the
s 77 (1)(d)
notice, if and when this notice is provided.
’
[7]
Following this notice, on 15 September
2017, third respondent’s standing committee convened a
consultative meeting which included
representatives of government,
first respondent and the appellant. At this meeting, it appears that
the parties agreed that a job
summit should be convened and that
third respondent should play a central role in the convening
thereof.  However, the parties
could not agree on the demand for
the prohibition of retrenchments which appellant alleged was
motivated by profits maximisation.
It appears that the government
representatives undertook to consult and revert to third respondent
within a month.
[8]
On 15 January 2019, first appellant issued
a further notice to the second respondent in terms of s 77 (1)
(d)
of the LRA. In it, the first appellant stated that it intended to
proceed with protest action as set out in the notice which had
been
served on the second respondent on 21 August 2017. The annexure to
the notice described the forms of protest action which
were
contemplated to take place on 13 February 2019.
[9]
On 5 February 2019, the first appellant
issued a further notice in terms of s 77 (1)
(d)
of the LRA in which it informed the second respondent of its
intention to again proceed with protest action on 19 February 2019.
[10]
On 28 August 2019, the first appellant
issued yet another notice to the second respondent, again in terms of
s 77 (1)
(d)
which disclosed an intention to proceed with protest action on 27
September 2019 which protest action would focus mainly on the

financial sector. Appellant then informed the second respondent that
“it will assess the program of action and decide on
the way
forward.  It reserved the right to extend the program of action
if it deemed it necessary.”
[11]
One day later, on 29 August 2019, the first
appellant issued a further notice in terms of s 77(1)
(d)
of the LRA disclosing the intention to proceed with protest action in
relation to the issues set out in the annexure to the notice
of 21
August 2017.  This time it described the protest action as
follows:
‘
4.
The protest actions that will involve time away from work are:
4.1
Rallies, marches, demonstrations, pickets,
placards demonstrations, lunchtime pickets, etc.  In all major
towns and cities
on the weeks leading to 7 October 2019.
4.2
A National Stay-away or a Socio-Economic
Strike on Monday 7 October 2019.
5.
The specific activities in paragraph 4 above will take place during
working hours.
The socio-economic strike will commence at 00:00
and end at 23:59 on 7 October 2019, except that shift workers will be
away for
the duration of one whole shift and it will be the shift
that has the majority of hours on the day in question.’
[12]
Whereas no
steps
were taken to stop the protest action of which the respondents were
informed in January and February 2019, and which subsequently
took
place in terms of the notices, a different approach was adopted to
the last two notices issued by the first appellant
.
On 5 September 2019, the first respondent wrote a
letter to the appellants requesting an undertaking in respect of the
contemplated
protests action which it claimed had been unlawful and
unprotected. The approach of the appellants was a denial that there
was
a failure to comply with s 77(1)
(b)
and
(c)
of
the LRA and that the protest action could be considered to be
unlawful. Accordingly, it confirmed that it would not withdraw
the
notice and that it intended to proceed with the protest action on the
indicated dates.
[13]
It was as a result of this correspondence
that first respondent approached the court a quo for relief.
[14]
In granting the interdict so sought by
first respondent, Rabkin-Naicker justified her order thus:
‘
I
therefore find that s 77 must be read to mean that a s 77 (1) (d)
Notice is issued within a reasonable period.  This was
not the
case in this matter.  Further, and in consequence of the same
reading of the section, I do not find that the section
contemplated
the issuing of more than one such Notice in respect of a referral in
terms of s 77 (1) (b).  The s 77 (1) (d)
Notice must be issued
within a reasonable period dependent on the particular facts and
circumstances of the process undertaken
in terms of section 77 (1)
(c).’
The appeal
[15]
Central to this appeal is the meaning and
scope of s 77(1) of the LRA which provides as follows:
‘
(1)
Every employee who is not engaged in an essential service or a
maintenance service has the
right to take part in protest action if—
(a)
the protest action has been called by a
registered trade union or federation of trade unions;
(b)
the registered trade union or federation of
trade unions has served a notice on Nedlac stating—
(i)
the reasons for the protest action; and
(ii)
the nature of the protest action;
(c)
the matter giving rise to the intended
protest action has been considered by NEDLAC or any other appropriate
forum in which the
parties concerned are able to participate in order
to resolve the matter; and
(d)
at least 14 days before the commencement of
the protest action, the registered trade union or federation of trade
unions has served
a notice on NEDLAC of its intention to proceed with
the protest action.’
[16]
More than 20 years ago this court had
occasion to examine this provision in
Business
South Africa v Congress of SA Trade Union & another
(1997) 18 ILJ 474
(LAC)
;
[1997] 5 BLLR 511
(LAC).
Writing for the majority of the court, Myburgh JP said at 516:
‘
The
first is that if the Act exacts the price of responsibility (in the
form of adhering to the statutory requirements before embarking
on a
strike) in order to gain the benefit of protection of strikes, at
least the same, if not greater, obligation or responsibility
rests on
a trade union, or federation of trade unions, that seeks protection
for its members taking part in protest action.’
[17]
The learned judge of appeal then went on to
examine the specific meaning of s 77 (1)
(c)
.
In this connection he said:
‘
The
actual wording of s 77 (1) (c) is, once again, not particularly
helpful in determining this.  It is possible to argue that
the
matter in dispute can be “considered … in order to
resolve the matter” on more than one occasion, and that

therefore it is open to take the next step in the sequence, viz to
serve the s 77 (1) (d) notice of an intention to proceed with
the
protest action at least fourteen days in advance of that protest
action, at any time after one of these occasions where the
matter was
so considered.  But such an interpretation would defeat the
purpose of a regulated exercise of the right to protest
action.
If protest action may be proceeded with whilst all the parties at
Nedlac are still committed to consider the matter
giving rise to the
dispute in order to resolve it, the purported regulation of that
exercise of the right to protest action becomes
meaningless.
Why refer the matter giving rise to the dispute to Nedlac in order to
resolve it if protest action may take
place regardless of whether the
issue has been resolved or not at Nedlac?  The answer must be
consistent with purpose of s
77, viz the regulated exercise of the
right to protest action.  This consistency is achieved if the
requirement of “consider
… in order to resolve” in
s 77 (1) (c) is interpreted so that it is only met once it becomes
clear that any one or
more of the parties at Nedlac is not committed
to resolve the matter in dispute any more.  Only when that is
clear, may the
next step, the s 77(1) (d) notice, be proceeded with.’
[18]
On the basis of these dicta, Mr Franklin
who appeared with Mr Itzkin on behalf of the first respondent,
submitted that s 77 when
read holistically, envisaged a continuum of
conduct, namely that protest action may only follow upon a series of
steps that had
been taken in sequence shortly after  each other.
In other words, the initial notice which is required to be issued in
terms
of s 77(1)
(b)
is designed to enable the second respondent an opportunity to resolve
the matters which had been raised in the notice.  Pursuant
to
this notice, it was then open to the affected employer to meet with
the relevant trade union at the premises of the second respondent
in
order to engage in a resolution of the grievances which had been
raised in the notice.  If the procedures envisaged in
s 77(1)
(c)
to resolve the problems raised in the notice are unsuccessful, then
on the basis of the principle that the LRA seeks timely and

expeditious resolution of all  labour disputes, Mr Franklin
contended that this core  principle militated against the

construction of s77 which left the option of protest action “open
ended” by allowing it to take place at the
choice of the
trade union, irrespective of how much time had passed since the
initial referral of the matter in dispute to the
second respondent in
terms of s 77(1)
(c).
[19]
In order to determine the meaning of s
77(1) of the LRA, account must be taken of the context in which the
right to protest action,
as set out in the section, implicates three
constitutional rights which are to be found in Chapter 2 of the
Constitution of the
Republic of South Africa, 1996. These rights are
freedom of expression in s 16, the right of assembly, demonstration,
picketing
and petitions in s 17 and the various labour relations
rights including the right to fair labour practice and the right that
each
worker has to participate in the activities and programs of a
trade union in ss 23(1) and 23(2)
(b)
of the Constitution.
[20]
A practice has been developed in recent
times that, when interpretation of a statute is required, automatic
and uncritical reference
is made to dicta in
Nata
l
Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA).
Suffice to say that one searches in vain in that judgment for any
reference to the influence of s 39(2) of the Constitution
which
enjoins this Court, when interpreting any legislation, to promote the
spirit, purport and object of the Bill of Rights. The
interpretation
of the legal text requires recourse to publically accessible
conventions and, in particular legal conventions, as
opposed to a
psychologically gleaned internal mental state of an individual
speaker which conceit sits most uneasily with the idea
of a multi
membered legislature. When the interpretative task is viewed within
the context of the Constitution, then it is possible
to conclude that
the latter has given rise to a legal convention sourced within the
normative framework of the Constitution.
Suffice in the present
case to state that this approach to statutory interpretation means
that s77 needs to be viewed, and thus
understood, through the prism
of the constitutional rights which are implicated by the section.
Accordingly, the section
requires an interpretation which gives a
viable meaning to its purpose and content to these rights.
[21]
But says the first respondent, a reading of
the LRA is equally important and therefore content must be given to
the principle of
expeditious resolution of labour dispute. In this
connection, Mr Redding, who appeared on behalf of the appellant,
referred to
the right to strike which in his view did not go stale.
[22]
Thus the principle of expeditious
resolution of a labour dispute did not apply in the case of strikes
or protest action as contended
for by first respondent. In this
connection, Mr Redding cited dicta in the
Chamber
of Mines SA v National Union of Mineworkers & another
(1986) (7) ILJ 304 (W) at 307 where Vermooten AJ said:
‘
I
agree with Mr Trengove who appeared on behalf of NUM that the right
to strike lawfully once acquired does not become stale.

That is so appears from the following considerations.  Firstly,
the section itself does not lay down any time-limit, secondly
the
section creates a criminal offence.  It is accordingly to be
narrowly construed the construction less restrictive of the
right to
strike as to be preferred.  Thirdly it also makes good sense
once the parties in dispute have gone through described
conciliation
procedure not to require them to do so again from time to time
whenever they wish to resort to a lawful strike or
lock-out
.’
[23]
Significantly, this approach was not
disturbed on appeal by the Appellate Division in
Chamber
of Mines SA v National Union of Mineworkers and another
1987 (1) SA 668
(A).
[24]
Notwithstanding a contrary view which was
expressed by the Labour Court in
Western
Platinum Limited v National Union of Mineworkers & others
(2000) ILJ 2502 (LC), Landman J in
Public
Service Association of SA v Minister of Justice and Constitutional
Development & others
(2001) 22 ILJ
2302 (LC) at paras 38 ff, found that a time limit could not be read
into the right to strike as guaranteed in the
Constitution the
operational details of which are set out in s 64 of the LRA.
[25]
Turning to the right to conduct protest
action, s 77 of the LRA does not expressly provide for time limits.
While the first respondent
argued for an implicit “reading in”
of the principle of expedition of resolution in respect of protest
action,
the nature of protest action as envisaged in s77, may
not be subject to the kind of expeditious resolution that would be
the case
with a labour dispute between employees and an employer in
that as is the case in the present dispute, the gravamen of
appellant’s
protests concerns a series of complaints about the
government’s economic policy. Manifestly the aim of the protest
which
is to press for policy changes falls within the scope of
protest action as set out in s 77 of the LRA. Unlike a labour dispute
between the parties to an employment relationship, the nature of this
protest is not one that falls to be resolved as expeditiously
as a
defined labour dispute.
[26]
The architecture of s 77 is also
instructive. It requires an initial notice in which the reasons for
the protest action and the
nature of the protest action are set out.
It is then incumbent, before embarking on protest action, for the
matter to be considered
by the second respondent or another
appropriate forum. But once there has been compliance with these
requirements, all that s 77,
in terms of para (d) thereof provides,
is at least 14 days before the commencement of the protest action
foreshadowed in the initial
notice, a further notice must be served
on the second respondent  In
Business
SA v COSATU, supra
at 524, Myburgh JP
said of the requirements mandated in s 77 that: “To the extent
that it is within the power of the employer
to resolve the matter,
the employer must know before it meets with the trade union or trade
union federation at Nedlac, as a minimum
whether the pressure is to
be applied to it, when the pressure will be applied, the nature of
the pressure and the duration of
the pressure.  BUSA knew when
the pressure would be applied (12 May) the nature of the pressure (a
strike), the duration of
the pressure (1 day).
[27]
That is precisely what any reader of the
various notices to which I have made reference, and which were issued
in terms of s 77
(1)
(b),
would have known in the present case; in short, when the pressure
would be applied, the nature of the pressure and the duration
of the
pressure. Once an attempt at resolution failed, all that was required
of the appellant was to issue the notice required
in terms of para
(d) which informed the respondents when the envisaged protest action
would take place.
[28]
Expressed differently, the interpretation
for which the first respondent contends would involve the following:
an initial notice
would be issued by the party wishing to protest, it
would set out the reasons for the protest action and the nature
thereof.
The matter would then be considered by the second
respondent. An attempt at resolution would fail and accordingly,
following a
notice in terms of sub para
(d)
within the prescribed time period, the protest action would take
place.  Once that protest action which, as in this case would

appear to last for a day, would have been completed, that would have
been the end of the protest action as set out in s 77 (1)
of the
LRA.  Where the union, in this case the appellant, wishes to
engage in further protest action, it would have to issue
a fresh
notice in terms of s 77 (1)
(b)
specifying the reasons for, and the nature of the protest action,
albeit that both of these may be the same as in the previous
notice.
The notice would then have to be reconsidered by the second
respondent. Once a further impasse has been reached,
a para
(d)
notice could then be issued.
[29]
There is simply no warrant for reading
these requirements into the section, particularly as it is predicated
on the vindication
of three constitutional rights as enshrined in
chapter 2 of the Constitution. In turn, this means that there was no
justification
for the reason upon which the order of the court
a
quo
was based, namely that the (d)
notice had to be issued within a reasonable time as contemplated by
the court
a quo
.
Regrettably, the reasoning of the court a quo, reveals a confusion
between the two different notices, the first notice was
issued in
terms of para (b) and the second in terms of (d).  If as the
learned judge in the court a quo stated “I do
not find that the
section contemplated the issuing of more than one such notice in
respect of a referral in terms of s 77 (1) (b)”,
there would
appear to be no reason why a (d) notice would have to be issued
within a prescribed time limit or even one which the
court, in its
discretion, considered to be a reasonable period.
[30]
In the light of these findings, there is no
need for this court to canvass the further arguments which were
raised, in particular
by the second respondent dealing with paragraph
7 of the so called “protocol document” which is annexed
to the Code
of Good Practice on Consideration of Notices of Possible
Protest Action in terms of s 77 of the LRA.
[31]
It follows that for the reasons set out in
this judgment, the appeal should succeed with costs.  The
following order is therefore
made:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
of 25 September 2019 is set aside
and replaced with the following:
‘
The
application is dismissed.  There is no order as to costs
.’
_________________
Davis JA
Jappie
JA and Kathree Setiloane AJA concur.
APPEARANCES:
FOR THE
APPELLANT:
Adv

Redding SC
Instructed Cheadle
Thompson & Haysom Inc
FOR
THE SECOND APPELLANT:
Adv Corne Goosen
Instructed
by B J Erasmus Pieterse Attorneys
FOR THE FIRST
RESPONDENT:
Adv Franklin And Adv Itzkin
Instructed
by Bowman Gilfillan Inc