Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union and Others ([2009] 10 BLLR 933 (LAC); (2009) 30 ILJ 1997 (LAC)) [2009] ZALAC 35; [2009] ZALAC 3 (14 May 2009)

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[2009] ZALAC 35
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Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union and Others ([2009] 10 BLLR 933 (LAC); (2009) 30 ILJ 1997 (LAC)) [2009] ZALAC 35; [2009] ZALAC 3 (14 May 2009)
98
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
Held in Johannesburg
Case no: JA49/06
In
the matter between
Equity Aviation Services (Pty) Ltd Appellant
And
South African Transport and 1
st
Respondent and
Allied Workers Union & others further
Respondents
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO
JP
Introduction
[1] I have had the benefit of reading the judgment
prepared by Khampepe ADJP in this matter. Regrettably I am unable to
agree with
the conclusion that she reaches in that judgment that the
appeal falls to be dismissed. In my view the appeal should succeed. I

set out below how I arrive at this conclusion. After I had prepared
an earlier draft of this judgment, Davis JA prepared his judgment
as
well in which he concurs in the order proposed by Khampepe ADJP. I
shall comment on one or two of its aspects later herein.
[2] This case is about the dismissal
of the second and further respondents from the appellant’s
employment for effectively participating
in a strike that took place
in the appellant company from the 18
th
December 2003 to the 2
nd
January 2004. That strike took place pursuant to a strike notice that
had been issued by the first respondent to the appellant
on the 15
th
December 2003.
[3] The first question in this appeal
is whether or not the second and further respondents were members of
the first respondent
at the time that the first respondent issued the
strike notice to the appellant on the 15
th
December 2003 for the strike that was to commence on the 18
th
December 2003. If they were members of the first respondent, that is
the end of the matter and the appeal falls to be dismissed.
However,
if they were not members of the first respondent at the time of the
issuing of the strike notice, then another question
will arise. That
is whether or not the second and further respondents, not being
members of the first respondent, were entitled
to commence striking
on the 18
th
December 2003 and continue taking part in the strike until the 2
nd
January 2004
on the
strength of the strike notice issued
by the first respondent
on the 15
th
December. If they were entitled to do so on the strength of that
strike notice, the appeal must fail. If they were not so entitled,

the appeal must succeed.
[4] I have framed the issues in this case in the terms
in which I have, despite the fact that in its written heads of
argument the
appellant included an argument to the effect that the
second and further respondents were not entitled to participate in
the strike
because they were not party to the referral to
conciliation of the dispute which gave rise to the strike. The reason
why I have
not included this contention among the issues for
determination in this appeal appears from paragraph 13 below. Before
I consider
the appeal, it is necessary to set out the facts of this
matter.
The
facts.
[5] The
appellant has been described in this case as an aviation logistics
company that provides service primarily on the ramps
and runways of
South Africa’s six major airports. The first respondent, the South
African Transport Allied Workers Union, (“
SATAWU
”),
is a registered trade union which represented the majority of the
appellant’s employees in the appellant company. The appellant

employed at the material time 2196 employees of which 1157 were
permanent employees and the balance contract workers. Of the 1157

permanent employees 725 were members of SATAWU. The second and
further respondents – their names appear in annexure “
A
”
to the founding affidavit - are former employees of the appellant who
were dismissed and whose dismissal is the subject of these

proceedings.
[6] From the 18
th
December 2003 to the 2
nd
January 2004 there was a strike in the appellant company. The strike
related to a wage dispute between the appellant and SATAWU.
SATAWU
had previously referred the dispute to the Commission for
Conciliation, Mediation and Arbitration (“
the
CCMA
”) for
conciliation as required by sec 191(1) of the Labour Relations Act,
1995 (“
the LRA
”)
but the dispute was not resolved at such conciliation.
[7] After the failure of the
conciliation process, the CCMA issued a certificate of non-resolution
of the dispute on the 15
th
December 2003. On the same day SATAWU issued a strike notice to the
appellant. The strike notice read thus:
“
We
intend to embark on strike action on 18 December 2003 at 08h00.”
(my
underlining).
The issuing of the strike notice was pursuant to the
provisions of sec 64(1)(b) of the LRA which requires a 48 hours
notice of the
commencement of a strike to be given to an employer
before a strike can be embarked upon.
[8] On the 18
th
December 2003 the strike started and went on until the 2
nd
January 2003. The second and further respondents took part in that
strike. Mr du Preez, who was the National Human Resources Manager
of
the appellant at the time of the strike gave evidence that he had
been given an assurance by the other trade unions to which
he
believed most of the second and further respondents belonged at the
time, that their members would not take part in the SATAWU
strike.
That evidence was not challenged nor was it contradicted.
Accordingly, the appellant must have been taken by surprise when

employees who, it believed, were members of the other unions joined
the strike as well on the 18
th
December. The appellant accepted that SATAWU’s members were
entitled to participate in the strike and that, accordingly, such

strike was, “
for
union members
”, a
protected strike. However, it adopted the attitude that employees who
were not members of SATAWU were not entitled to participate
in such
strike and that, “
for
such employees,
”
the strike was not protected.
[9] Subsequent to the strike coming
to an end, the second and further respondents were dismissed by the
appellant for absence from
work without permission. Their absence
from work was without permission but they were absent from work
because they were participating
in the strike from the 18
th
December 2003 to the 2
nd
January 2004.
[10] A dispute arose between the appellant, on the one
hand, and, SATAWU and the second and further respondents, on the
other, about
the fairness or otherwise of the second and further
respondent’s dismissal. SATAWU contended that the reason for the
second and
further respondents’ dismissal was the second and
further respondents’ participation in a protected strike and that,
therefore,
the dismissal was automatically unfair whereas the
appellant contended that the second and further respondents’
participation
in the strike was not protected and, that, therefore,
it was not automatically unfair. The dispute concerning the second
and further
respondents’ dismissal was referred to the CCMA for
conciliation. When conciliation failed to produce a resolution of the
dispute,
the union referred the dispute to the Labour Court for
adjudication.
The
Labour Court
[11] In
the Labour Court the parties agreed to separate issues and to defer
the issue of relief. The parties agreed that the Court
had to decide
whether or not the second and further respondents’ dismissal was
automatically unfair. The dispute came before
Ngcamu AJ. One of the
issues that the Labour Court was called upon to decide was whether or
not the second and further respondents
were SATAWU members when the
strike commenced on the 18
th
December 2003. For reasons that will be apparent later I think that
the question should be whether or not they were members of
SATAWU at
the time that the union issued the strike notice.
[12] The Labour Court found that the second and further
respondents were members of SATAWU. It further found that they were,
therefore,
entitled to participate in the strike and that their
participation in the strike was protected. The Labour Court also
concluded
that the second and further respondents’ dismissal for
participation in the strike was automatically unfair. Thereafter the
Labour
Court proceeded to order the appellant to reinstate the second
and further respondents. It is common cause between the parties that,

whatever the outcome of this appeal, the order of reinstatement made
by the Labour Court should be set aside because that Court
had been
asked not to make that order at that stage. The Labour Court
subsequently granted the appellant leave to appeal to this
Court
against its judgment. Hence this appeal.
The
appeal
[13] In
the appellant’s written heads of argument Counsel who drew the
appellant’s heads, who is not the same Counsel as the
Counsel who
appeared for the appellant before us, submitted that the main issue
raised by the appeal was whether or not employees
who are not members
of the trade union that referred the dispute which gave rise to the
strike to conciliation are entitled to
participate in the strike that
such a union subsequently calls in respect of such dispute. This
included a submission that employees
who are not members of the trade
union which referred the dispute to conciliation cannot take part in
the strike that ensues unless
they, too, refer that dispute to
conciliation themselves or unless somebody or a union refers the
dispute to conciliation on their
behalf. Mr Gauntlett, who appeared
for the appellant before us, did not pursue this point and, in my
view, correctly so. The reason
why Mr Gauntlett did not pursue this
point is probably that it goes completely against established
authorities both in the Labour
Court and in this Court (See
Afrox
Ltd v SACWU & others (1) (1997) 18 ILJ 399(LC)
,
Chemical Workers
Industrial Union v Plascon Decorative Inland (Pty)Ltd (1999) 20 ILJ
321 (LAC), SACTWU v Free State and Northern
Cape Clothing
Manufactures’ Association (2001) 22 ILJ 2636 (LAC)
and
Early Bird Farm
(Pty)Ltd v Food and Allied Workers Union & others (2004) 25 ILJ
2135 (LAC)
). Mr
Gauntlett pursued a much more narrower point. I shall deal with that
point shortly. However, before that, I must deal with
the issue of
whether or not the second and further respondents were members of
SATAWU at the relevant time.
Were
the second and further respondents members of SATAWU at the time of
the issuing of the strike notice?
[14] Both
before the Court below and this Court one of the issues between the
parties was whether or not the second and further
respondents were
members of SATAWU when members of SATAWU acquired the right to
strike. As I have already said, the Court a quo
found that they were.
In this regard Counsel for the appellant attacked this finding of the
Court a quo as unjustified by the evidence.
[15] In
her judgment Khampepe ADJP has dealt quite thoroughly with the
question whether the Court below was correct in its finding
that the
second and further respondents were members of SATAWU at the relevant
time. She has concluded that the finding made by
the Court below is
unjustified by the evidence and finds that the second and further
respondents were not members of SATAWU at
the relevant time. I
entirely agree with this conclusion as appears from what I say below.
[16] In par 23 of its judgment the Court a quo even
said, among other things, in connection with the procedure to obtain
SATAWU
membership:
“
The procedure is that the
application form must be completed and submitted to the local office
bearers who must submit it to the
regional secretary. The application
must be accompanied with the subscription fee. The application should
be recommended by the
General Working Committee to the Regional
Executive Committee. The constitution does provide that those whose
applications have
been accepted should be informed in a particular
manner.
”
The Court a quo pointed out in par 24
of its judgment that the appellant requested the
agendas and minutes
of meetings of the Regional Working Committee, the Regional Executive
Committee and those of the Central Executive
Committee of SATAWU
covering the relevant period when the second and further respondents’
applications for SATAWU membership
could have been dealt with, if
there were any. The agendas and minutes that were requested seem to
have been provided. Mr du Preez,
who gave evidence on behalf of the
appellant in the Court below and who was the National Human Resources
Manager of the appellant
at the time of the strike, testified that he
went through the agendas and minutes that were supplied by SATAWU and
could not find
anything to suggest that any decision was ever taken
by any of the relevant committees of SATAWU to either recommend or
approve
or accept any applications by the second and further
respondents for membership. His evidence in this regard was not
challenged
under cross - examination nor was it contradicted by any
other evidence.
[17] The Court a quo made the finding that the second
and further respondents were members of SATAWU despite the fact that
it could
not point to any evidence before it that the procedure
prescribed by SATAWU’s constitution for the processing of
applications
for membership had been followed in respect of any
applications for membership that the second and further respondents
may have
made. This was also despite the fact that there was no
evidence before it that any structure of SATAWU had made any decision
to
recommend or approve or accept any application for membership that
may have been made by the second and further respondents as is

required by SATAWU’s constitution.
[18] The Court a quo said that no
reason was given for the appellant’s decision to return to SATAWU
stop order forms which had
been transmitted by fax to it in January
2004. The Court a quo said that there was nothing wrong with those
stop order forms and,
by implication, they should not have been
returned to SATAWU. The Court a quo then said: “
In
the light of this I am unable to accept that the 63 applicants were
not members of SATAWU.
”
This statement by the Court a quo gives the impression that the Court
a quo forgot that what would have conferred SATAWU membership
on the
second and further respondents would not have been the acceptance of
the stop order forms by the appellant but it would
have been the
taking by the relevant structure of SATAWU of a positive decision to
approve applications for membership made by
the second and further
respondents if they ever made such applications at the relevant time.
Very strangely, SATAWU did not lead
any evidence that any of the
procedures set out on its constitution for the conferment of
membership were ever followed in respect
of the second and further
respondents nor did it lead evidence that any of its structures ever
approved any applications for membership
that may have been made by
the second and further respondents at the relevant time.
[19] There can be no doubt whatsoever that at the time
that SATAWU issued its strike notice and during the period of the
strike
no decision was ever taken by any structure of SATAWU to
recommend or approve or accept any application for SATAWU membership
that
may have been made by the second and further respondents to
SATAWU. In the absence of such decision, the second and further
respondents
could not have been members of SATAWU at the time SATAWU
issued the strike notice in this case or during the strike.
Submitting
applications for membership could not by itself confer
membership on them.
[20] Before I move on to another issue, I need to say
something about SATAWU’s stance in the Court below and in this
Court that
the second and further respondents were its members during
the strike.
SATAWU knew that to acquire its membership an
employee was required by its constitution to apply for membership and
that that application
had to be processed in a certain way and had to
be recommended and ultimately approved or accepted by a certain
committee authorised
by the constitution to do so and the person
concerned must then be informed of that decision. SATAWU knew from a
certain stage
prior to the commencement of the trial in the Court
below that the relevant committee of SATAWU had not made any decision
to approve
any application made by the second and further respondents
for membership of SATAWU at any stage before the end of the strike.
Despite its knowledge of this factual position, SATAWU instructed its
lawyers to assert that the second and further respondents
were its
members during the strike or refrained from instructing its lawyers
that the second and further respondents were not its
members during
the strike. I take a very dim view of this way of conducting
litigation by SATAWU. It is completely unacceptable.
I hope that
SATAWU’s leadership will look into how this came about and take the
necessary steps to deal with it and to make sure
that nothing of this
kind occurs in the future.
[21] In the light of the finding that
at the relevant time the second and further respondents were not
members of SATAWU, I need
to proceed to then consider the contention
that, because the second and further respondents were not members of
SATAWU, they were
not entitled commence striking on the 18th December
2003 and to continue to take part in the strike up to the 2
nd
January
2004 on the
strength of the strike notice of the 15
th
December 2003
.
Were
the second and the further respondents entitled to commence striking
on the 18
th
December 2003 and to continue with the strike up to the 2
nd
January 2004 on the strength of SATAWU’s strike notice of the 15th
December 2003?
[22] Counsel
for the appellant submitted that in this case the terms of the strike
notice that SATAWU gave to the appellant were
such that the proposed
strike was limited to a strike by SATAWU members and not a strike by
employees of the appellant who were
not members of SATAWU.
[23] Counsel for the appellant argued
that the second and further respondents, not being members of SATAWU,
fell outside the category
of workers which the strike notice told the
appellant would commence striking on the 18
th
December 2003. The strike notice issued by SATAWU on the 15
th
December 2003 has been quoted above. However, because of the
importance of its contents I shall quote it again. It said: “
We
intend to embark on strike on 18 December 2003 at 08h00
”
(my underlining).
[24] Counsel for the appellant relied
upon the use by SATAWU of the word “
we
”
at the commencement of the sentence in the strike notice to submit
that the strike notice was to the effect that members of
SATAWU
intended to embark on a strike on the 18
th
December 2003 at 08h00. He submitted that the use of the word “
we
”
in the sentence could not refer to persons who were not SATAWU
members. Counsel’s submission was that the effect of the use
of the
word “
we
”
by SATAWU in the strike notice was that employees who were not SATAWU
members were not included among those who, in terms of
the strike
notice, would commence striking on the 18
th
December 2003.
[25] Counsel for the respondents’
answer to this contention was that a union cannot in law competently
restrict the right to strike
of any employee of the employer by
limiting the strike notice to certain employees who otherwise could
go on strike. He submitted
that in effect what the union may say in
its strike notice in regard to which employees will commence a strike
on the day given
in the strike notice is irrelevant. He argued that
all that is required is that a strike notice be given to the employer
which
tells the employer when the strike would commence. He submitted
that, where a union said in a strike notice that A, B and C would

embark upon a strike on a certain day, D, E and F could also commence
striking on the day given in the strike notice even though
the strike
notice did not include them among the employees who will commence
striking on the day in question. He submitted that
in commencing
striking in those circumstances D, E and F could do so without the
giving of any other strike notice that covers
them. I asked him
whether in a case where a union said in a strike notice that its
members would commence a strike on a certain
day, employees who were
not members of that trade union would be entitled to also go on
strike on the day given in the strike notice
without any further
notice having to be given. Counsel for the respondents’ answer to
this question was in the affirmative.
[26] The respondents’ Counsel did
not dispute the correctness of Mr Gauntlett’s contention that the
use by SATAWU of the word
“
we
”
at the beginning of SATAWU’s strike notice was a reference to
SATAWU’s members. It is difficult to think of any basis upon
which
Counsel for the respondents could have conceivably argued that “
we
”
in that strike notice meant any employees other than those employees
who were members of SATAWU at the time. Counsel for the
respondents
simply argued, as already indicated above, that, as long as SATAWU
had given a strike notice, any employee of the appellant,

irrespective of whether he or she was a member of SATAWU, was
entitled to take part in the strike even if that employee fell into
a
category of employees which the strike notice said would not take
part in the strike. Counsel for the respondents’ submission
was
that it is not competent in law for a union to exclude any employees
from commencing a strike at a time given in a strike notice.
[27] For the above contention Counsel
for the respondents relied heavily, if not exclusively, on the
judgment of the Labour Court
in
Afrox
Ltd v SA Chemical Workers Union & others (1) (1997) 18 ILJ 399
(LC)
and on the
judgments of this Court in
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty)Ltd
(1999) 20 ILJ 321 (LAC), SACTWU v Free State & Northern
Cape
Clothing Manufactures’ Association (2001) 22 ILJ 2636 (LAC)
and
Early Bird Farm
(Pty)Ltd v Food and Allied Workers Union & others (2004) 25 ILJ
(LAC).
In so far as
Counsel for the respondents relied upon these decisions in support of
the submission that the second and further respondents
did not need
to refer the dispute to the CCMA for conciliation before they could
commence striking, he was right. However, in so
far as he relied upon
these decisions in support of the contention that, despite the fact
that in its strike notice SATAWU had
effectively said that it was
SATAWU members who were going to commence striking on the 18
th
December 2003, employees who fell outside the terms of the strike
notice in that they were not members of SATAWU were entitled
to also
commence striking on the 18
th
December 2003 on the strength of SATAWU’s strike notice, he
misconstrued those decisions. .
[28] The issue in the Afrox case was
whether or not, where a trade union had a dispute with an employer
which directly affected
its members employed in a particular branch
and the union had complied with all the statutory requirements
necessary for a protected
strike to take place in respect of such a
dispute, members of that union employed in another branch of the same
company but not
directly affected by the dispute, also had a right to
take part in such a strike. At 403I in Afrox I, then sitting as an
Acting
Judge in the Labour Court, concluded that “
once
a dispute exists between an employer and a union
and
the statutory requirements laid down in the LRA to make a strike a
protected strike have been complied with
,
the union acquired the right to call all its members out who are
employed by that employer out on strike and its members so employed

acquire the right to strike
(my underlining)
.
”
In that case the Court was not called upon to decide the effect of
the issuing by a trade union of a strike notice the content
of which
was formulated in certain terms which is what the issue is in the
present case.
[29] The issue in the Plascon
Decorative case was whether members of a trade union based in a
bargaining unit other than the one
which was directly affected by a
particular dispute were entitled to take part in a strike relating to
a dispute directly affecting
other members of the union who were in
another bargaining unit. In that case it was common cause between the
parties that the procedures
which the union had complied with
rendered the strike a “
protected
strike
” (par 3 of
the judgment).
The
issue was not whether the strike notice that had been issued covered
the non – bargaining unit members of the union in that
case
.
Nor was it whether or not it was competent for a trade union to limit
or exclude some of its members or some of the employees
from the
group of employees who would commence striking on the day given in
the strike notice. The question was in that case whether
the fact
that the employees belonged to a different bargaining unit made any
difference in law with regard to their right to take
part in the
strike. It was held, quite correctly, that that fact did not make any
difference. As to what the issue was in the Plascon
Decorative case,
reference can be made to paragraphs 6, 21 and 29 of Cameron JA’s
judgment. As far as the other two cases are
concerned, namely, the
SACTWU case and the Early Bird case, also in none of them was the
issue whether or not by what it says in
the content of a strike
notice, it is competent for a trade union to limit the number of
employees or categories of employees to
commence a strike on the day
specified in such strike notice.
[30] The argument that employees employed by the same
employer, irrespective of the bargaining unit or branch in which they
were
employed, need not refer to conciliation a dispute that has
already been referred to conciliation by their co – employees or
their union before they can take part in the strike relating to that
dispute is based on the understanding that the employees who
are not
directly affected by the dispute take part in the strike in support
of the demands of their colleagues who are directly
affected by the
dispute and those demands are part of the dispute that has already
been referred to conciliation. No purpose would
be served by a second
referral of the dispute to conciliation in such a case.
[31] If the employees not directly affected by the
dispute giving rise to the strike sought to strike in respect of
their own demands
which were separate from those of the employees who
are directly affected by the dispute that has been referred to
conciliation,
they would need to first refer their dispute to
conciliation and, at the relevant time, issue a strike notice before
they could
acquire the right to strike. This is so because it would
be a different dispute. Provided that this distinction is
appreciated,
the argument that employees who are not directly
affected by a dispute that has already been referred to conciliation
need not
refer the same dispute to conciliation before they can take
part in a strike relating to such a dispute is, with respect,
correct.
However, this argument cannot be invoked in respect of the
requirement that a notice of the commencement of a strike must first

be given to the employer before employees can commence striking. The
reason for this lies in the fact that the requirement that
a dispute
be referred to conciliation and the requirement that a notice of the
commencement of a strike be given have different
purposes.
[32] The purpose of the requirement
that a dispute be referred to conciliation is to give the parties to
the dispute an opportunity
to resolve the dispute through
conciliation or mediation. It is a cooling – off period for the
parties to the dispute to reflect
on the dispute and how it can or
should be resolved without the need for industrial action. In
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Building and Allied
Workers Union (2) (1997) 18 ILJ 671 (LAC) at 677B
– D
this Court said through Froneman DJP about the purpose of a strike
notice required by sec 64(1)(b) of the LRA:
“The
section’s specific purpose is to give an employer advance warning
of the proposed strike so that an employer may prepare
for the
power-play that will follow. The specific purpose is defeated if the
employer is not informed in the written notice in
exact terms when
the proposed strike will commence. In the present case the notice is
defective for that reason. The provisions
of s 64(1)(b) were not
complied with.
”
Realising that the strike that the union may have been
threatening might occur is now a certainty, the employer may, after
receiving
the notice of the commencement of the strike, decide to
accede to the union’s demands to avoid the strike or he may decide
to
face the strike but to take such measures as he may deem necessary
to deal with the strike and or to take such measures as he may
deem
necessary to protect his business or to minimise the impact of the
strike on his business, including the employment of temporary

replacement labour.
[33] It seems to me that the issue that needs to be
decided at this stage is the question whether or not it is competent
in law
for a trade union, by what it says in a strike notice, to
limit the number or categories of employees of the targeted employer
who will commence striking on the date given in the strike notice.
This is a matter for the construction of sec 64(1)(b) of the
LRA.
This provision will be quoted later in this judgment.
Interpretive
context
[34] Before
one can attempt to establish the correct interpretation of sec
64(1)(b), it is important to bear in mind the constitutional
and
statutory context in which sec 64(1)(b), like any other provisions of
the LRA, must be interpreted. In this regard certain
provisions of
both the Constitution and the LRA are relevant.
[35] Section 23(1) of the
Constitution – which is part of the Bill of Rights in the
Constitution – provides that “
[e]veryone
has the right to fair labour practices
”.
Sec 23(2)(c) provides that “
(e)veryone
has the right to strike”
.
Sec 23(4) provides that every trade union and every employers’
organisation has the right:
“
(a) to determine its own
administration, programmes and activities
;
to organise; and
……
.”
Sec 23(5) provides that every trade union, every
employer’s organisation and employer has the right to engage in
collective bargaining
and national legislation may be enacted to
regulate collective bargaining. The LRA is such legislation.
[36] Sec 39(1) of the Constitution reads thus:
“
(1) When interpreting the Bill
of Rights, a court, tribunal or forum –
must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
must consider international law; and
may consider foreign law.
Section 39(2) of the Constitution provides that “
[w]hen
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights
.”
[37] Section 232 of the Constitution provides that
customary international law is law in the Republic unless it is
inconsistent
with the Constitution or an Act of Parliament. Section
233 deals with the application of international law. It reads:
“
When interpreting any
legislation, every court must prefer any reasonable interpretation of
the legislation that is consistent with
international law over any
alternative interpretation that is inconsistent with international
law.
”
[38] The provisions of s 1 and s 3 of
the LRA must also be taken into account in interpreting sec 64(1)(b).
Section 1 of the Act
states the purpose of the LRA. It provides that
the purpose of the LRA is ‘
to
advance economic development, social justice, labour peace and
democratisation of the workplace
’.
It seeks to achieve this purpose by fulfilling the primary objects of
the LRA.
The primary objects of the LRA are set out in sec 1 as
the following:
“
(a) to give effect to and
regulate the fundamental rights conferred by section 27 of the
Constitution;
to give effect to obligations
incurred by the
Republic
as a member state of the International Labour Organisation;
to provide a framework within
which
employees
and their
trade
unions
,
employers and
employers
’
organisations
can –
collectively bargain to determine wages, terms and
conditions of employment and other matters of mutual interest; and
formulate industrial policy; and
to promote –
orderly collective bargaining;
collective bargaining at sectoral level;
employee participation in decision– making in
the workplace; and
the effective resolution of
labour dispute
s
”.
As can be seen above, one of the primary objects of the
LRA is the promotion of orderly collective bargaining.
[39] The provisions of sec 3 of the LRA are of paramount
importance in the construction or interpretation of the LRA. They
enjoin
everyone who applies the LRA to interprete its provisions to
give effect to its primary objects, to interprete its provisions in

compliance with the Constitution and also to do so in compliance with
the public international law obligations of the Republic.
Sec 3 of the LRA provides as follows:
“
Any person applying this Act
must interpret its provisions:
to give effect to its primary objects;
in compliance with the Constitution;
in compliance with the public international law
obligations of the Republic.”
[40] It is important to note that,
unlike those cases in which the literal theory of interpretation
applies, a person applying provisions
of the LRA need not first find
that the language of the statute is not clear or is ambiguous or that
giving provisions of the LRA
the ordinary or natural meaning will
lead to an absurdity before he can interprete provisions of the LRA
in such a way as to give
effect to the primary objects of the LRA. In
my view the effect of sec 3 of the LRA is that
whenever
one seeks to interprete any provision(s) of the LRA, one is required
to always give effect to the primary objects of the LRA and
to
always
give an
interpretation that will also be in compliance with the Constitution
and with the public international law obligations of
the Republic.
This does not mean that one disregards the language chosen by the
legislature to formulate the statutory provision.
However, it does
mean, in my view, that where adherence to the literal meaning of the
statutory provision would not give effect
to or promote the purpose
or object of the provision and there is another meaning or
interpretation that can be given to the provision
which would
promote, or give effect to the, purpose of the statutory provision,
effect must be given to the interpretation that
gives effect to the
purpose of the provision even if this means departing from the
ordinary or literal or grammatical meaning of
the words or provision.
Accordingly, before you settle on a particular interpretation of any
provisions of the LRA, sec 3 requires
you to stand back and ask
yourself the questions: does this interpretation give effect to any
one or more of the primary objects
of the LRA? Is this interpretation
in compliance with the Constitution? Is this interpretation in
compliance with the public international
law obligations of the
Republic? If the interpretation that is proposed does not give effect
to the primary objects of the LRA
or any one of the primary objects
of the LRA or if it is not in compliance with the Constitution or
with the public international
law obligations of the Republic, that
interpretation should be rejected and an interpretation should be
sought which will comply
with the injunction in sec 3 of the LRA.
[41] It is theoretically possible that one may have an
interpretation of a provision of the LRA that gives effect to the
primary
objects of the LRA but is not in compliance with either the
Constitution or the public international law obligations of the
Republic
or both. In such a case, quite clearly the requirement for
an interpretation that complies with the Constitution will prevail.
It is not necessary in this case to consider what should happen where
an interpretation complies with the Constitution, gives effect
to the
primary objects of the LRA but is not in compliance with the public
international law obligations of the Republic or vice
versa.
[42] It is necessary to point out that the requirement
of notice of industrial action is recognised internationally.
Internationally,
the requirement that industrial action be preceded
by the giving of notice of such action is considered acceptable
provided such
requirement does not place a substantial limitation on
the right to strike. (see Ben - Israel: Industrial Labour Standards
118).
Some of the countries which subject the exercise of the right
to strike to the procedural requirement of a prior strike notice are

Denmark, Finland, Israel, the Republic of Slovenia, the Netherlands,
Spain, Namibia, Swaziland, certain jurisdictions of Canada,
England,
Norway, Australia, Ghana, USA, Zimbabwe and Botswana.
Purposive
construction
[43] It has been held that the
approach that must be adopted in construing any provisions of the LRA
is purposive construction.
(See
BSA
v COSATU & Another (1997) 18 ILJ 474(LAC) at 479A – B; CWIU v
Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321(LAC);
NEHAWU
v University of Cape Town (2003) 24 ILJ 95 (CC)).
I am inclined to think that this is correct. However, should
purposive construction have shades of meanings which might suggest

that there are certain circumstances under which one should not have
regard to the purpose of the legislation that is being interpreted,

that cannot apply to the interpretation of the LRA because sec 3 does
not contemplate cases when, in interpreting a provision of
the LRA,
one would be free to interprete it in such a way as not to give
effect to the primary objects of the LRA, in such a way
as not to
comply with the Constitution and in such a way as not to comply with
the international obligations of the Republic.
[44] The fact that purposive construction is the
approach to interpretation that must be used each time a provision of
the LRA is
interpreted means that there must be a clear understanding
of:
(a) what purposive construction is?
(b) how purposive construction differs from other
theories of statutory interpretation
(c)
what the rules are which govern purposive construction, and,
(d)
what the scope of application of purposive construction is?
[45] Lourens du Plessis:
Re-Interpretation of
Statutes
, 2002
Butterworths explains purposivism thus at 96:
“
Purposivism attributes meaning
to a legislative provision in the light of the purpose that it seeks
to achieve in the context of
the instrument of which it is part.
Where clear language and purpose are at odds the latter prevails
.”
With regard to how one determines the
purpose of a statutory provision, Du Plessis states that
“(a)ccording
to the classical version of purposivism in the common law tradition,
the so-called mischief rule in Heydone’s case,
the purpose of
enacted law is to suppress mischief
”
and
“(a) court
interpreting a provision is constrained to ask four questions
.”
Du Plessis lists the four questions as being:
what was the common law before the enactment of the
statutory provision?
what were mischief and defect for which the common law
did not provide?
what is the remedy that Parliament
resolved to use to rectify the position or “
to
cure the disease
”?
(d) what was the true reason for the remedy chosen by
Parliament.
[46] If there is no clear understanding of the issues
referred to above about purposive construction, there is a great
danger that
purposive construction will not be used in the
interpretation of the provisions of the LRA and instead different
theories of statutory
interpretation will be used when it is intended
to use purposive construction. It is, therefore, necessary that
attempts be made
to obtain answers to these questions. Of course, one
cannot deal with all these questions about purposive construction in
a single
judgment. I, therefore, do not propose to do so in this
judgment. However, courts are going to need to address these
questions
as our labour law develops so as to ensure that everybody
has the same understanding of what purposive construction is and what

the rules are which inform it. In this case I only propose to refer
and discuss briefly some of the cases, both in English law
and in
South African law which have applied purposive construction. By
choosing these cases I do not mean that they are the only
ones that
have applied purposive construction. I have chosen them simply
because they come to my mind immediately. I shall start
with English
law.
[47] Those who are familiar with
patent law seem to take it as settled that the term “
purposive
construction
” was
coined by Lord Diplock. Lord Diplock used the term “
purposive
construction
” in
a landmark decision of the House of Lords relating to the
construction of patent claims, namely, Catnic Components Limited
and
Another v Hill and Smith Limited
[1982] R.P.C. 183
(HL), a decision
the popularity of which went far beyond the United Kingdom. For
convenience I shall refer to this decision simply
as “
Catnic
”
or “
the Catnic
decision
”. The
popularity of that decision, which was concurred in by the rest of
the Law Lords in that case, certainly contributed significantly
to
the popularisation of the doctrine of purposive construction. Catnic
introduced the use of purposive construction in the construction
of
patent claims in English patent law but was subsequently followed in
other jurisdictions such as South Africa, Canada, Hong
Kong,
Australia and New Zealand (see Binnie J of the Supreme Court of
Canada in Free World Trust v Electro Sante Inc.,
[2000] 2 S.C.R. 1024
par 39.)
[48] Prior to the Catnic decision the construction of
patent claims in English law was based on literalism which, not
infrequently,
produced results that were quite unacceptable (see Lord
Hoffmann in Kirin – Amgen Inc v Hoechst Marion Roussel Ltd
[2005]
All ER 169
(HL) at 184 par 27 to 185 par 29.). According to Lord
Hoffmann in the Kirin – Amgen case the Catnic decision of the House
of
Lords represents the House of Lords’ solution to the problem
created by literalism standing in the way of the construction of

patent claims giving fair protection to the patentee. He said that
the House of Lords abandoned literalism (see par 42 in Kirin
–
Amgen) in favour of purposive construction.
[49] Although many of those familiar
with patent law may have come across the use of the term “
purposive
construction
” by
Lord Diplock for the first time in the Catnic case, Catnic was not
the first case in which Lord Diplock used that term. Prior
to Catnic,
he had already used it about ten years earlier in Kammins Ballrooms
Co Ltd v Zenith Investments (Torquay)
[1971] All ER 850
(HL).
Accordingly, it is appropriate to say a thing or two about that case
and purposive construction.
Kammins
Ballrooms Co Ltd v Zenith Investments (Torquay)
[1971] All ER 850
(HL)
[50] At
the outset I must point out that in Kammins’ case Lord Diplock’s
speech, unlike in Catnic, was not concurred in by the
rest of the Law
Lords who sat in that matter. That case dealt with the UK’s
Landlord and Tenant Act,
1954. Sec 24(1)
of that Act made provision
for an application to be made to Court by a tenant or landlord for an
order that effectively would renew
or extend a lease in certain
circumstances. Sec 29(3) of that Act provided that “
no
application under subsection (1) of section 24 shall be entertained
unless it is made not less than two nor more than four months
after
the giving of the landlord’s notice under section 25 of this Act
or, as the case may be, after the making of the tenant’s
request
for a new tenancy.
”
[51] As can be seen, the language of the provision of
sec 29(3) was clear. The prohibition was also clear and did not
provide for
any exception. Lord Diplock effectively read an exception
into the provision. He said in effect that, for the purposes of that
case, the statutory provision could be said to have been made for the
benefit of the landlord. He went on to say that, where a party
for
whose benefit a provision had been enacted did not object to the
non-observance of the time frames stipulated in the statutory

provision he waived his right to object and in such a case the
provision should be read to allow such an exception. Lord Diplock

held that the Landlord had not objected to such application being
brought to Court outside the stipulated timeframe, and that,

therefore, the prohibition did not apply. At 880 Lord Diplock said:
“
A conclusion that an exception
was intended by parliament, and what that exception was can only be
reached by using the purposive
approach. This means answering the
question: what is the subject- matter of Part ll of the Landlord and
Tenant Act, 1954? What
object in relation to that subject matter did
Parliament intend to achieve? What part in that achievement of that
object was intended
to be played by the prohibition in section 29(3)?
Would it be inconsistent with achievement of that object if the
prohibition were
absolute? If so, what exception to or qualification
of the prohibition is needed to make it consistent with that object?”
At 881 he went on to say:
“
This is the construction which
has been uniformly applied by the courts to the unqualified and
unequivocal words in statutes of
limitation which prohibit the
bringing of legal proceedings after the lapse of a specified time.
The rule does not depend on the
precise words of prohibition which
are used. They vary from statute to statute. In themselves they
contain no indication that any
exception to the prohibition was
intended at all. It is thus impossible to arrive at the terms of the
relevant exception by the
literal approach. This can be done only by
the purposive approach, viz, imputing to Parliament an intention not
to impose a prohibition
inconsistent with the objects which the
statute was designed to achieve, though the draftsman has omitted to
incorporate in express
words any reference to that intention
.”
I now turn to a brief discussion of the Catnic decision
of the House of Lords.
Catnic
Components Limited of Another v Hill & Smith Limited
[1982] R.P.C
183
(HL)
[52] As
I have already intimated above, Catnic’s significance relates to
the construction of patent claims. The patent in that
case related to
galvanised steel lintels to be used in the construction of buildings.
Lintels are described as structural members
which are put over
openings, for example door and windows, to support the building
above. In Catnic the patent claims stated that
the lintel should have
“
a second rigid
support member
extending
vertically
from or from near the rear edge of the first horizontal plate”
(underlining
supplied). In the defendant’s product in that case the rigid
support member was inclined about 8

off vertical and, was, therefore, not “
extending
vertically
” as
required by the terms of the claims. It fell outside the literal
terms of the claims. Accordingly, there was no textual infringement

of the plaintiffs’ patent claims.
[53] In Catnic the question was
whether or not the defendant’s product infringed the patentee’s
claims even though it did not
extend “
vertically
”
in accordance with the express terms of the claims. If literalism was
applied in construing those claims, in all probability
it would have
been found that the defendant’s product did not infringe the
patentee’s claims because its rigid support member
did not extend
“
vertically
”
but was inclined 8

off vertical. This would be so in the case of a certain manner of the
application of literalism and the doctrine of pith and marrow
which
was meant to be used to avoid some of the injustices that could flow
from an application of literalism in the construction
of patent
claims. In this regard I have in mind the application of literalism
such as one finds in the majority decision in Van
der Lely N.V.
Bamfords Ltd
[1963] R.P.C. 61
(HL). However, having regard to Lord
Reid’s dissents in the Van der Lely case and in Rodi &
Wienenberger A G v Harry Showell
Ltd
[1969] R.P.C. 367
(HL), I think
that he probably would have found infringement using the doctrine of
pith and marrow even before the introduction
by the Catnic decision
of purposive construction in the construction of patent claims.
[54] In the Catnic decision Lord
Diplock found that the defendant’s product infringed the patentee’s
claims. To reach that conclusion
he turned his back on literalism
which had reigned supreme for quite sometime in the construction of
patent claims in English law
and said that a new approach had to be
adopted which he called: “
purposive
construction.
” In
his oft-quoted passage on purposive construction in the context of
the construction of patent claims, Lord Diplock said:
“
My lords, a patent
specification is a unilateral statement by the patentee, in words of
his own choosing, addressed to those likely
to have a practical
interest in the subject matter of his invention (i.e ‘skilled in
the art’), by which he informs them what
he claims to be the
essential features of the new product or process for which the
letters patent grant him a monopoly. It is those
novel features only
that he claims to be essential that constitute the so – called
‘pith and marrow’ of the claim. A patent
specification should be
given a purposive construction rather than a purely literal one
derived from applying to it the kind of
meticulous verbal analysis in
which lawyers are too often tempted by their training and indulge.
The question in each case is:
whether persons with practical
knowledge and experience of the kind of work in which the invention
was intended to be used, would
understand that strict compliance with
a particular descriptive word or phrase appearing in a claim was
intended by the patentee
to be an essential requirement of the
invention so that any variant would fall outside the monopoly
claimed, even though it could
have no material effect upon the way
the invention worked”.
The
essence of purposive construction in the construction of patent
claims, as explained by Lord Diplock in Catnic, is that claims
should
be construed so as to determine the intention of the patentee as
understood by the notional addressee with regard to the
essential
integers of a patent claim.
[55] Fundamental to the use of
purposive construction in the Catnic case was that Lord Diplock also
asked the question as to why
the patentee would have intended that
his claims should be limited to a rigid support member that was
strictly vertical and not
inclined 8

off vertical. Lord Diplock said at 244 lines 13 – 18:
“
No plausible reason has been
advanced why any rational patentee should want to place so narrow a
limitation on his invention. On
the contrary, to do so would render
his monopoly for practical purposes worthless, since any imitator
could avoid it and take all
the benefit of the invention by the
simple expedient of positioning the back plate a degree or two from
the exact vertical.
”
From this passage it is clear that, when Lord Diplock
could not find any plausible reason why the patentee should have
wanted to
place as narrow a limitation on his invention as was being
suggested by the defendants in that case, he held that the patentee
did to intend to place such a narrow limitation on his invention.
Indeed, he pointed out in effect that the patentee could not have

intended such a limitation because it would have rendered his
monopoly worthless.
Kirin-Amgen
Inc v Hoechst Marion Roussel Ltd
[2005] All ER 169
(HL)
[56] In Kirin - Amgen Inc the House of Lords re-affirmed
purposive construction as the correct approach to be adopted in the
construction
of patent claims. In the Kirin - Amgen case, Lord
Hoffmann made quite a few statements which may be taken to throw
light on purposive
construction – at least within the context of
the construction of patent claims. He said in part at 185 par 30:
“
It came to be recognised that
the author of the document such as a contract or patent specification
is using language to make a
communication for a practical purpose and
that a rule of construction which gives his language a meaning
different from the way
it would have been understood by the people to
whom it was actually addressed is liable to defeat his intentions.
”
In
the same paragraph Lord Hoffmann referred to a passage in Lord
Diplock’s judgment in the Antaios case
[1985] A.C. 191
at 201 where
Lord Diplock had the following to say about the construction of a
charterparty:
“
I take this opportunity of
re-stating that if detailed semantic and syntactical analysis of
words in a commercial contract is going
to lead to a conclusion that
feints business common sense, it must be made to yield to business
common sense.
”
[57] In par 32 of his speech Lord Hoffmann inter alia
said:
“
Construction is objective in
the sense that it is concerned with what a reasonable person to whom
the utterance was addressed would
have understood the author to be
using the words to mean. Notice, however, that it is not, ‘the
meaning of the words the author
used’ but rather what the notional
addressee would have understood the author to mean by using those
words. The meaning of words
is a matter of convention, governed by
rules, which can be found in dictionaries and grammars what the
author would have been understood
to mean by using those words is not
simply a matter of rules. It is highly sensitive to the context of,
and the background to,
the particular utterance. It depends not only
upon the words the author has chosen but also upon the identity of
the audience he
is taken to have been addressing and the knowledge
and assumptions which one attributes to the audience.
”
(par 32)
[58] In par 33 p. 185 – 186 Lord
Hoffmann said that what “
lies
at the heart of ‘purposive construction’ is the fact that the
notional addressee reads the specification
‘on the assumption
that its purpose is to both describe and to demarcate an invention –
a practical idea which the patentee
has had for a new product or
process - and not to be a text book in mathematics or chemistry or a
shopping list of chemicals or
hardware.
”
It seems to me that what Lord Hoffmann meant here is that the insight
which lies at the heart of purposive construction is to
read a
document, be it a statute or contract with a clear appreciation of
its true purpose. Actually, after saying that the purpose
of a
specification is no more nor less than to communicate the idea of an
invention, Lord Hoffmann continued and said in par 33:
“
An
appreciation of that purpose is part of the material which one uses
to ascertain the meaning.
”
[59] In par 34 Lord Hoffmann emphasised the role of
language in purposive construction. With regard to purposive
construction, in
the construction of patent claims Lord Hoffmann
emphasised what the question always is. In this regard he referred to
the same
question as formulated in Catnic. He then continued:
“
And for this purpose, the
language [the patentee] has chosen is usually of critical importance.
The conventions of word meaning
and syntax enable us to express our
meaning with great accuracy and subtlety and the skilled man will
ordinarily assume that the
patentee has chosen his language
accordingly.
”
Seaford
Court Estates Ltd v Asher
1949 All ER 155
(CA).
[60] As early as 1949 Denning LJ adopted an approach to
interpretation which was a departure from literalism which the
English courts
used (see Denning LJ in Seaford Court Estates Ltd v
Asher
1949 All ER 155
(CA). In the Seaford case Denning LJ, inter
alia said, in connection with a judge’s task when a statute came up
for consideration:
“
In the absence of [Acts of
Parliament drafted with divine prescience and perfect clarity] a
judge cannot simply fold his arms. He
must set to work on the
constructive task of finding the intention of Parliament, and he must
do this not only from the language
of the statute, but also from a
consideration of the social conditions which gave rise to it and of
the mischief which it was passed
to remedy and then supplement the
written word so as to give ‘force and life’ to the intention of
the legislature.
”
Later, Denning LJ inter alia said
that a judge should do as the Legislature would have done if it had
come across the situation
before him. Denning LJ’s approach to
interpretation as found in the Seaford case was later severely
criticised by Lord Simonds
in
Magor
& St Mellons v Newport Corporation
[1951] All ER 839
(HL)
at 84 as the usurpation of the legislative function under the guise
of interpretation.
Bulmer Ltd and Another v J Bollinger SA and others
[1974] 2 All ER 1226
(CA)
[61] In
Bulmer
Ltd and Another v J Bollinger SA and others
[1974] 2 All ER 1226
(CA)
Lord Denning MR called for the English courts to adopt a new approach
to interpretation which he believed was used by the European
Court of
Justice and other European courts. A reading of Lord Denning MR’s
judgment in Bulmer’s case does not suggest that
the approach he was
calling for had any material difference from the one he had sought to
use in Seaford’s case. Speaking of
English judges and the approach
to interpretation that he believed they should use, Lord Denning MR
inter alia said at 1237g:
“
They
must follow the European pattern. No longer must
they examine the words in
meticulous detail. No longer must they argue about the precise
grammatical sense. They must look to the
purpose or intent.
”
James Buchanan & Co Ltd v
Babco Forwarding and Shipping (UK)
[1977] 1 All ER 518
(CA)
[62] In
James
Buchanan & Co Ltd v Babco Forwarding and Shipping (UK)
[1977] 1
All ER 518
(CA)
Lord Denning MR, once again advocated the adoption by the English
courts of the approach to interpretation which he believed was
used
by the European Courts. He said that in terms of that approach “
the
judges do not go by the literal meaning of the words or by the
grammatical structure of the sentence. They go by the design
or
purpose which lies behind it.
”
He said that “
[the
European judges] ask simply: what is the sensible way of dealing with
this situation so as to give effect to the presumed purpose
of the
legislation?
”
[63] A careful reading of the cases
of Kammins Ballrooms, Catnic and Kirin–Amgen, which expressly used
purposive construction,
reveals that purposive construction is not
only invoked if there is ambiguity in the statutory provision being
interpreted. In
Catnic and Kirin-Amgen the language of patent claims
was clear and unambiguous. The statutory provision in the case of
Kammins
Ballroom was also quite clear. Nevertheless, the
interpretation adopted by Lord Diplock in the two cases and by Lord
Hoffmann in
Kirin-Amgen departed from the clear language of the
statute or patent claims in order to give effect to the purpose or
intention
to the statute or of the patentee. Accordingly it can be
said that one of the rules of purposive construction is that it can
be
used even if the language of the statute or document sought to be
interpreted is clear and unambiguous. Two Constitutional Court
cases
in which, in my view, that Court quite clearly applied purposive
construction in cases relating to the interpretation of
the
Labour
Relations Act, 1995
are
NEHAWU
v University of Cape Town (2003) 24 ILJ 95 (CC) as well as NUMSA and
Others v Bader Bop (Pty)Ltd and another 2003 24 ILJ
305 (CC).
Both judgments in Bader Bop quite clearly applied purposive
construction.
[64] Writing for a unanimous
Constitutional Court in
S
v Zuma & others 1995(2) SA 642 (CC)
,
Kentridge AJ quoted what Dickson J said in
R
v Big M Drug Mart Ltd (1985)18 DLR (4
th
)
321 at 395-6
. There
Dickson J said:
“
In Hunter v Southam Inc… this
court expressed the view that the proper approach to the definition
of rights and freedoms guaranteed
by the Charter was a purposive one.
The meaning of a right or freedom guaranteed by the Charter was to be
ascertained by an analysis
of the purpose of such a guarantee; it was
to be understood, in other words, in the light of the interests it
was meant to protect.
In my view this analysis is to be undertaken,
and the purpose of the right or freedom in question is to be sought
by reference
to the character and larger objects of the Charter
itself, to the language chosen to articulate the specific right or
freedom with
which it is associated within the text of the Charter.
The interpretation should be, as the judgment in Southam emphasizes,
a generous
rather than a legalistic one, aimed at fulfilling the
purpose of a guarantee and securing for individuals the full benefit
of the
Charter’s protection. At the same time it is important not
to overshoot the actual purpose of the right or freedom in question,

but to recall that the Charter was not enacted in a vacuum, and must
therefore ...be placed in its proper linguistic, philosophical
and
historical contexts.
”
[65] The cases on purposive
construction referred to above suggest that purposive construction is
concerned with giving a sensible
or reasonable interpretation to
statutory provisions or contract or other documents. In this regard I
point out that in Catnic
Lord Diplock said that the intention of the
patentee must be determined on the basis of the understanding of the
notional addressee
and in Kirin-Amgen Lord Hoffmann said that such
notional addressee is taken to be a reasonable person. Obviously, if
the intention
of the patentee is to be determined on the basis of the
understanding of a reasonable notional addressee, the interpretation
of
the patent claim must be a reasonable one. Furthermore, in the
case of James Buchanan, referred to above, Lord Denning MR said that

the question asked by the European Judges was: “
what
is the sensible way of dealing with this situation so as to give
effect to the presumed purpose of the legislation
?”
Furthermore, in the Antaios case
[1985 A.C. 191
at 201 Lord Diplock
himself said that, if detailed semantic and syntactical analysis of
words in a commercial contract is going
to lead to a conclusion that
feints business common sense, it must be made to yield to business
common sense. In his article titled:
“
Administrative
Law in South Africa
”
1986 SALJ 615
at 620 Mureinik puts it thus:
“
It is true, of course, that
purposive interpretation is generally superior to a mechanical
application of the ordinary grammatical
meaning of words. The essence
of the argument why it is true can perhaps be captured by saying that
literal interpretation aspires
to no more than making sense of a
fragment of a statute; but purposive interpretation enjoins the
reader to prefer the construction
that makes sense, or makes the best
sense, of the statute as a whole: Purposive interpretation seeks the
construction that makes
the statute most coherent.
”
When there are two possible interpretations of a
statutory provision or contract or other document one of which is
within the literal
terms of the statute or other document but does
not give effect to or promote the purpose of the statutory provision
or other document
and the other promotes or gives effect to or
promotes such purpose, even though it is not strictly within the
literal terms of
the relevant statutory provision or contract or
other document, the latter interpretation must be preferred.
[66] When applying purposive construction you ask the
question why a particular construction of a statutory provision or
other document
would have been intended as opposed to another one.
Support for this can be found in Catnic’s case where Lord Diplock
asked the
question why the patentee would have intended a very narrow
limitation of his invention.
[67] It has been said that “
(t)o
arrive at the real meaning. [of a statutory provision] we have
according to Lord Coke(Heydon’s case (3 Co Rep. 76)) to consider,
(1) what was the law before the measure was passed;
(2) what was the mischief or defect for which the law
had not provided;
(3)
what remedy the Legislateor had appointed; and
(4)
the reason of the remedy.(See Olley v Maasdorp
(1948) (4), S.A.L.R.
667
at 666.)”
(
Hleka
v Johannesburg City Council
1949 (1) SA 842
(A) at 852 – 853
).
In the light of this it may be necessary to refer to the background
to the enactment of the statutory requirement for a strike
notice in
our law.
The
historical background to the statutory requirement for a strike
notice
[68] The
requirement contained in
sec 64(1)(b)
, (c) and (d) of the LRA for the
giving of a strike notice and a lock - out notice was not introduced
into our law out of nowhere.
There were developments which preceded
it. Although the Labour Relations Act, 28 of 1956 – the predecessor
to the current LRA
- did not contain a requirement for a strike
notice or a lock - out notice, it was during the operation of that
Act that certain
developments occurred which paved the way for the
introduction of a statutory requirement for a strike notice in our
law. The first
of those developments was the judgment of the
Industrial Court in
MAWU
v BTR Sarmcol (1987) 8 ILJ 815 (IC)
in which that tribunal criticised the union’s conduct in not giving
the employer a prior warning of a strike before the workers
went on
an illegal strike. The court held that this was unfair to the
employer.
[69] In 1988 the industrial court
criticised another trade union and the workers who had gone out on an
illegal strike without giving
any prior notice to the employer. (See
BAWU & others v
Palm Beach Hotel (1988) 9 ILJ 1016 (IC) at 1023G
).
Subsequently numerous decisions were handed down by the industrial
court to the same effect. (See
Ray’s
Forge & Fabrication (Pty) Ltd v NUMSA & others (1989) 10 ILJ
762 (IC) at 773J; SACWU v SASOL Industries (Pty) Ltd
& Another
(2) (1989) 10 ILJ 1031(IC) at 1037C-E; BAWU & others v Asoka
Hotel (1989) 10 ILJ 167 (IC) at 177H-178C; BAWU
& others v Edward
Hotel (1989) 10 ILJ 357 (IC); MWASA & others v Perskor (1989) 10
ILJ 1062(IC) at 1068-1069D; BTR Dunlop
Ltd v NUMSA (2) (1989 10 ILJ
701 (IC) at 707E-H; NTE v SACWU & others (1990) 11 ILJ 43 (N);
FAWU v Middevrystaatse Suiwel Ko-operasie
Bpk (1990) 11 ILJ 776 (IC);
FBWU & others v Hercules Cold Storage (Pty) Ltd (1989) 10 ILJ 457
(IC); Mercedes-Benz of SA (Pty)
Ltd v NUMSA (1991) 12 ILJ 667 at 672
(this was an arbitration award and not a judgment of a court); NUMSA
& others v Malva
(Pty) Ltd (1992) 13 ILJ 1207 (IC) at 1216D-E;
CWIU v Reckett Household Products (1992) 13 ILJ 622 (IC);
SACWU
& others v BHT Water Treatments (Pty) Ltd (1994) 15 ILJ 141 (IC)
at 163F-164A; NUMSA & others v Maranda Mining Co
Ltd (1995) 16
ILJ 1155 (IC); FWCSA & others v Casbak Burger Box CC (1996) 17
ILJ 947 (IC) at 955C-I; NUMSA & others v Datco
Lighting (Pty) Ltd
(1996) 17 ILJ 315 (IC).).
[70] In the years that followed the
now defunct Labour Appeal Court, established under sec 17 of the 1956
Act, and the then Appellate
Division of the Supreme Court also gave
their approval to the notion that it could be unfair to the employer
if workers went on
strike without giving any notice to the employer.
This was in the context of determinations whether dismissals of
illegal strikers
were unfair where, among other things, they had gone
on illegal strikes without any notice or warning to the employer.
(
FBWU & others v
Hercules Cold Storage (Pty) Ltd (1990) 11 ILJ 47 (LAC); NUMSA &
others v MacSteel (Pty) Ltd (1992) 13 ILJ
826 (A) at 835B; NUMSA v
Three Gees Galvanising (1993) 14 ILJ 372 (LAC); Doornfontein Gold
Mining Co Ltd v Num & others (1994)
15 ILJ 527 (LAC) at 542B).
[71] In 1990 a technical committee of
the National Manpower Commission was established to consider various
proposals which had been
made for the amendment of the old LRA. That
technical committee recommended that there be a statutory requirement
for the giving
of “
24
hours (or such other period as may have been agreed upon in writing)
written notice of the commencement of the strike”
for
a strike to be a lawful strike. (See “
Proposals
For the Consolidation of the Labour Relations Act
”
(1990) 11 ILJ 285).
[72] In 1993 two pieces of
legislation were passed which contained what seems to have been the
first ever statutory requirement
for a strike notice in the history
of South African labour law. They were sec 15(5) of the Education
Labour Relations Act, 1993
(Act 146 of 1993)(“
the
ELRA
”) and sec
19(4) of the Public Service Labour Relations Act, 1993 (Act 102 of
1993) )”
the
PSLRA
”). The ELRA
applied to educators/teachers in the public service whereas the PSLRA
applied to other civil servants.
[73] As can be seen in the Explanatory Memorandum that
accompanied the Labour Relations Bill which preceded the current LRA,
the
Ministerial Task Team which prepared the LRA included in the Bill
a provision requiring the giving notice of industrial action.
(See
Explanatory Memorandum (1995) 16 ILJ 278 at 302).
[74] In considering the question whether or not by what
it says in a strike notice it is competent for a trade union to limit
the
number or categories of workers who will commence striking on a
day specified in the strike notice, I propose to first inquire into

the question whether an employer and a trade union can competently
conclude a collective agreement which requires different groups
of
members of such union to commence striking on different days in the
event of such union calling a strike. The reason why I begin
with
such an inquiry is because, if such a collective agreement is
competent, it will be easier to deal with the question why a
union
cannot unilaterally do the same if it can be done by agreement with
the employer.
[75] It is necessary to quote the provisions of sec
64(1)(b) of the LRA. Sec 64(1)(b) reads:
“64. Right to strike and recourse to lock – out – (1) Every
employee
has the right to strike and every employer has recourse to
lock
– out
if–
……
in the case of a proposed
strike
,
at least 48 hours’ notice of the commencement of the
strike,
in writing,
has been given to the employer, unless–
the
issue
in dispute
relates
to a
collective
agreement
to be concluded in a
council
,
in which case, notice must have been given to that
council
;
or
the employer is a member of an
employers’
organisation
that is a party to the
dispute
,
in which case, notice must have been given to that
employers’
organisation
;
or
(c) ……
(d)……”
[76] Collective bargaining is normally expected to
result in the conclusion of a collective agreement. A collective
agreement is
defined in sec 213 of the LRA as meaning:-
“
a written agreement concerning
terms and conditions of employment or any other matter of mutual
interest concluded by one or more
registered trade unions, on the one
hand, and, on the other hand –
one or more employers;
one or more registered employers’ organisations;
or
one or more employers’ and one
or more registered employers’ organisations.
”
SATAWU is a registered trade union. Accordingly, if it
concluded a written agreement with the appellant which concerned
either terms
and conditions of employment or any other matter of
mutual interest, that agreement would constitute a collective
agreement as
defined in sec 213 of the LRA.
[77] An employer who has different
departments or categories of employees performing different duties
may approach a trade union
that seeks recognition as a collective
bargaining agent of some of the workers in the workplace and propose
that they conclude
an agreement part of which would be to the effect
that, should such union call a strike, it would give a strike notice
of a longer
period than the minimum period prescribed by sec 64(1)(b)
of the LRA, for example, seven days, in respect of employees in
certain
departments and would give 48 hours notice of the
commencement of a strike as prescribed by the LRA in respect of
employees employed
in other departments. For convenience I shall
refer to those departments which would require a longer strike notice
as the “
vulnerable
departments
” and
the other departments as the “
non-vulnerable
departments.
” The
employer would want this to be contained in the recognition and
procedural agreement between the parties. In return for
certain
benefits, the union may agree to such a clause.
[78] An
agreement regulating the period of a strike notice that must be given
by a trade union in the event of a strike is clearly
an agreement
concerning a term and condition of employment or a matter of mutual
interest. As such an agreement would be in writing
and the union that
is party to such an agreement would be a registered trade union and
the other party would be an employer, such
agreement would constitute
a collective agreement as defined in sec 213 of the LRA. This being
the case, such collective agreement
would be binding upon, on the one
hand, the employer, and, on the other, the trade union and its
members in the light of sec 23
of the LRA. The effect of such a
clause in the collective agreement would be that, if the union wished
to call its members out
on strike who are in the vulnerable
departments, it would be obliged to give a longer strike notice than
the minimum notice prescribed
by sec 64(1)(b) of the LRA. If,
however, it sought to call out on strike those of its members
employed in other departments, it
would be obliged to give a strike
notice of the minimum period of 48 hours as prescribed by sec
64(1)(b) of the LRA.
[79] The trade union would be acting in breach of its
obligations under the collective agreement with the employer if it
gave a
strike notice of a shorter period than the one prescribed by
the collective agreement in respect of the employees employed in the

vulnerable departments. Indeed, if the union gave a 48 hours strike
notice of the commencement of a strike by its members employed
in the
vulnerable departments despite the requirement for a longer strike
notice period contained in the collective agreement,
the employer
would be entitled to an interdict restraining such employees from
taking part in such strike prior to the union giving
a longer strike
notice as required by the collective agreement. In fact the interdict
could also restrain the union from calling
its members employed in
the vulnerable departments out on strike until such time as it has
given the longer strike notice prescribed
by the collective
agreement.
[80] If the union issued a 48 hour strike notice as
required by sec 64(1)(b) of the LRA to the effect that only its
members employed
in the non – vulnerable departments will commence
a strike on the specific date on which, for example, the 48 hour
notice period
expires, it could not be argued that in such a case the
employees employed in the vulnerable departments would also be
entitled
to commence striking on the expiry of the 48 hour strike
notice and that they would not be obliged to wait until a longer
strike
notice was given in respect of them as required by the
collective agreement. Taken to its logical conclusion, Counsel for
the respondents’
argument is to the effect that in such a case the
employees employed in the vulnerable departments would be entitled to
commence
striking on the strength of the 48 hour strike notice meant
for the employees in the non – vulnerable departments despite the

fact that in terms of the collective agreement a longer notice period
would be required before they could commence striking.
[81] The conclusion to be drawn from the above is that
it is competent for a collective agreement as contemplated in sec 213
of
the LRA to contain a clause which requires a trade union to give
different notices of the commencement of a strike in respect of

different categories or groups of employees eg, 48 hours notice of
the commencement of a strike for one category of employees and
a
longer notice of the commencement of a strike for another category of
employees. The two notices for the two different categories
of
employees can be contained in the same document or in two separate
documents.
[82] If the principle that it is competent for a trade
union, by a collective agreement with an employer, to limit the
number of
its members who will commence a strike on a date given in
the strike notice is accepted, why would it not be competent for the
same trade union to unilaterally limit the number or categories of
employees who will commence striking on a certain date? I cannot

think of any reason why this cannot be so. The proposition that a
trade union cannot do so, if accepted by this Court, would have

detrimental consequences for trade unions because it would mean that
a trade union which, for strategic or tactical reasons, wishes
to
stagger its strike in order to optimise or maximise the effect of the
strike on the employer would not be able to do so.
[83] What I have done above, apart from discussing the
issue of the correct approach to the interpretation of the LRA, is
two things.
First, I have shown that the cases of Afrox, Plascon
Decorative, Early Bird and SACTWU upon which Counsel for the
respondents relied
to support his contention on the interpretation of
sec 64(1)(b) have no application in relation to the requirement for a
strike
notice as prescribed by sec 64(1)(b) and his reliance
thereupon was misplaced. Second, I have shown that as a matter of law
it
is competent for a trade union and an employer to conclude a
collective agreement requiring that differing strike commencement
dates be given in a strike notice or in strike notices for different
groups of workers. The employees whose strike notice requires
them to
commence striking on a later date would not be entitled to commence
striking on the earlier date given for another group
of employees to
commence striking. If this is accepted as legally correct, then, in
my view, it destroys the very foundation of
the contention advanced
by Counsel for the respondents because that disproves the
respondents’ proposition that, if there is
a strike notice that
gives notice to the employer of the commencement of the strike by one
group of employees given in the notice,
employees falling outside the
group of workers given in such strike notice would also be entitled
to commence striking on the day
given in such notice.
[84] The proposition advanced by the
respondents’ Counsel is based upon the use of literalism in the
construction of sec 64(1)(b).
It amounts to saying that the text of
sec 64(1)(b) requires a “
48
hours notice of the commencement of the strike in writing
”
to be given to the employer and, as long as a 48 hours notice of the
commencement of the strike in writing has been given to
the employer,
it does not matter what its implications and consequences are in
relation to the purpose of the LRA and of sec 64(1)(b)
itself. It
reminds one of the majority judgment in
Ebrahim
v Minister of the Interior
1977 (1) SA 665
(A)
.
In that case there was a statutory provision which said that any
citizen of S.A, not being a minor, shall forfeit the South African

citizenship if, while outside South Africa, acquired the citizenship
of another country other than by marriage. On the literal
meaning of
that provision a S.A. citizen could get out of the country, fill in
the necessary application forms for citizenship
of another country
and immediately return to S.A so that, when the citizenship of that
other country was granted to him, he would
be inside the country so
that he could argue that when he “
acquired
”
the citizenship of the other country, he was inside South Africa and,
therefore, that statutory provision did not apply to him.
On this
interpretation the purpose of that statutory provision could easily
be defeated. In fact its purpose could be defeated
so easily that it
would not be worth anything. This is the interpretation of the
provision that was adopted by the majority in
the Appellate Division
in the Ebrahim matter. The minority adopted a different
interpretation. The minority’s interpretation
was that it did not
matter where the SA citizen happened to be when the citizenship of
another country was granted to him as long
as he had taken the steps
to acquire it while outside SA. In my view this was a clear case
where it was important to ask the question:
what was the mischief
that the section sought to deal with and what was the purpose of the
section because, without asking those
questions, one can end up
attaching so literal a meaning to the provision that the provision
ceases to make sense.
[85] The approach to the
interpretation of the LRA taken by the majority in
NEHAWU
v UCT (2002) 23 ILJ 306 (LAC)
also ignored sec 3 of the LRA and the purpose of sec 197. The result
was that they gave sec 197(1) of the LRA a meaning that would

completely defeat the purpose of sec 197, namely, the security of
employment for employees when there is a change of hands in a

business. The minority in that case and, subsequently, the
Constitutional Court, gave sec 197 a purposive interpretation which

resulted in sec 197(1) being given a meaning that gave effect to that
purpose and to the primary objects of the LRA.
[86] In my view the contention advanced by the
respondents as to the meaning of sec 64(1)(b) runs contrary to the
injunction contained
in sec 3 of the LRA with regard to how the LRA
should be interpreted. It is an interpretation which, in my view, not
only fails
to give effect to the primary objects of the LRA,
particularly orderly collective bargaining but also it is an
interpretation which,
if accepted, would bring about a dispensation
that is extremely unfair not only to employers but also to workers
because that interpretation
would have to also apply to a case where
an employer institutes a lockout. Such interpretation will also mean
that an employer
who has branches throughout the country may give a
lockout notice to the effect that he will institute a lock-out only
in respect
of a small group of employees in some small town and
nowhere else and yet on the day in question lock-out all the workers
in all
branches throughout the country. This will give rise to
disorderly and chaotic collective bargaining. In support of this
proposition
I shall give a few practical illustrations of the
implications and consequences of the contention advanced on behalf of
the respondents.
These examples I give cannot be dismissed on the
basis that they do not represent the facts of this case. I say this
because in
this case we are called upon to give a meaning to a
statutory provision and when a Court does that, it is obliged, before
deciding
upon a meaning of the statutory provision, to think the
proposed meaning through carefully and consider what the practical
implications
and consequences will be of such a meaning in real life.
In giving a meaning to a statutory provision a court cannot or should
not close its eyes to how such a meaning would affect those to whom
it may relate. And if a meaning is going to produce results
or has
implications which either defeat or may defeat or undermine the
purpose of the statute or of the statutory provision, it
should be
avoided and one should be sought that is either in line with or gives
effect to the purpose of the statute or statutory
provision. I
proceed to give two or so possible scenarios hereunder.
[87] Company ABC (Pty) Ltd employs
five thousand employees and it has branches or offices in all nine
provinces of the country.
Its head office is in Johannesburg. In the
different branches of the company some employees are members of
various trade unions
while others are not members of any trade union.
Some unions even have members who are members of the management as
well as members
who are not in management positions. Some of the
employees, including those who are members of other trade unions, are
ordinary
workers whereas others are professionals or administrative
staff.
1
One of the trade unions which has members employed by ABC (Pty) Ltd
is DEF and Allied Workers Union (“
DEFAWU
”).
Another trade union is GHI and Allied Workers Union (“
GHIAWU
”).
DEFAWU is the majority trade union in the company country – wide
and has 2700 members in the company. The rest of the trade
unions
share the balance of the employees as their respective members.
GHIAWU only has 50 members out of 150 employees employed
by the
company in a small town called Nongoma in KwaZulu – Natal. It has
25 members employed by the company in Durban and, inexplicably,
30
members employed by the company in Stellenbosch in the Western
Cape. All employees
who are members of GHIAWU are cleaners.
[88] A dispute arises between GHIAWU
and ABC (Pty) Ltd about an issue labelled as “
rural
allowance
”
demanded by GHIAWU for its members employed by ABC (Pty) Ltd as
cleaners in Nongoma which ABC (Pty) Ltd is not prepared to pay.

GHIAWU refers the dispute to the CCMA for conciliation and the
parties thereto are GHIAWU and ABC (Pty) Ltd. The dispute is
characterised
in the referral as the company’s refusal to pay
GHIAWU members employed by the company in Nongoma a rural allowance.
Obviously
this is a matter of mutual interest. Conciliation attempts
fail and the CCMA issues a certificate of outcome to the effect that

the dispute remains unresolved. GHIAWU then issues to ABC (Pty) Ltd a
strike notice that reads: “
Our
members who are employed at Nongoma will commence a strike on the
18
th
December.
”
[89] On the submission made by
Counsel for the respondents in this case it would not matter that
GHIAWU’s strike notice says
“
our
members who are employed in Nongoma
will commence
a strike
” on
the given date. On his contention:
(a) ABC (Pty) Ltd’s employees who
are not members of GHIAWU but are either members of other trade
unions or are not members of
any trade union would be entitled to
commence striking on the 18
th
December in accordance with GHIAWU’s strike notice despite the fact
that the strike notice said GHIAWU members would commence
striking on
the day in question and did not say anything about employees who are
not GHIAWU members also commencing strike on that
day.
(b) ABC
(Pty) Ltd’s employees who are not employed in Nongoma and are
employed elsewhere in the country including Cape Town, Johannesburg,

Stellenbosch, etc, would also be entitled to commence striking on the
18
th
December on the strength of GHIAWU’s strike notice which said that
the employees who would commence striking were those employed
in
Nongoma.
(c) ABC (Pty) Ltd’s employees who
are not cleaners, including those in management positions, would be
entitled to commence striking
on the 18
th
December on the strength of GHIAWU’s strike notice which
effectively said it is cleaners employed by ABC (Pty) Ltd in Nongoma

who are members of GHIAWU who would commence striking on the day in
question. I say that the strike notice effectively said that
it was
cleaners employed in Nongoma who are members of GHIAWU who would
commence striking on the day in question because GHIAWU’s
members
employed by ABC (Pty) Ltd in Nongoma are all cleaners.
(d) ABC
(Pty) Ltd’s employees who are members of GHIAWU but are employed in
Stellenbosch would be entitled to commence striking
on 18
th
December despite the fact that GHIAWU’s strike notice limited the
strike notice to its members employed in Nongoma and these
employees
are not employed in Nongoma but in Stellenbosch.
One implication of the construction of sec 64(1)(b)
advanced by Counsel for the respondents is that where a union’s
strike notice
says that the union’s members employed in Nongoma
would commence a strike on a certain day, the sudden eruption of
strikes in
many other places on the day given in the strike notice
and which were not contemplated in the strike notice is permissible.
[90] The proposition only needs to be
stated in order for its untenability to be revealed. In my view there
can be no reasonable
basis for the suggestion that ABC (Pty) Ltd,
which received a strike notice which said members of GHIAWU employed
by ABC (Pty)
Ltd as cleaners in Nongoma would commence a strike on
the 18
th
December, should read such a notice to mean what it did not say,
namely, that employees who were not members of GHIAWU would also
take
part in the strike and that employees who are not employed in its
Nongoma branch will also commence with the strike on the
18
th
December. Accordingly, such a notice would not have served its
purpose of enabling the employer to prepare how to minimise the

damage that the strike could visit upon his business.
[91] It seems to me that, as a general rule, when a
strike notice has been issued, whether or not another one would be
required
to be issued depends upon whether or not the strike notice
that has been issued is sufficiently wide to cover all categories of

workers employed by the same employer who may wish to participate in
the strike to which the strike notice relates. If it is wide
enough
to cover a particular group, such group can also take part in the
strike without having to give any strike notice. However,
if it is
not sufficiently wide to cover that category, a strike notice for the
commencement of strike by that group of workers
is required. What
determines whether another strike notice is or is not required is
whether or not the strike notice that has
already been given to the
employer is sufficiently wide to cover the relevant category of
workers.
[92] Another way to test the untenability of the
respondents’ proposition that all employees irrespective of which
unions they
belong to have a right to commence a strike on the date
given in the strike notice issued by one of the unions even if the
notice
excludes some of the employees is this one. Two trade unions
are active among the employees of the employer. The one union, A,

has no procedural agreement of any kind with the employer about
strike procedures and needs to only comply with the statutory
procedures. The other union, B, has a collective agreement with the
employer to the effect that, if its members intend embarking
upon a
strike, 72 hours written notice of the commencement of the strike
must be given to the employer first. This example is very
apposite in
this case because Mr du Preez testified that the appellant was given
assurance by other trade unions in the company
which had some of the
second and further respondents as their members that their members
would not participate in the SATAWU strike.
Were those assurance of
no legal significance? On the respondents’ proposition if union A
gives a 48 hours’ written notice
of the commencement of a strike by
its members, employees who are members of union B would be entitled
to commence striking on
the strength of the 48 hours’ notice on the
day given in union A’s notice.
[93] The difficulty with union B’s members commencing
a strike on the basis of the 48 hours’ notice given by union A is
that,
when they do that, they will be in breach of their union’s
collective agreement which in terms of sec 23 of the LRA is binding

on them as well, and, in my view, their participation in the strike
will be precluded because striking in breach of a collective

agreement regulating strikes is unprotected. One of the foundational
principles of the LRA is to promote collective agreements.
The
interpretation of sec 64 (1) (b) of the LRA advanced on behalf of the
respondents flies in the face of that principle because
it promotes
disrespect for collective agreements and the procedures contained
therein.
[94] The respondents cannot validly say: but it’s
different if the other union has a collective agreement that requires
a longer
strike notice than the one prescribed by sec 64 (1) (b)!
They cannot say this because, if it is competent for one trade union
to
preclude members from commencing a strike on the day given in a 48
hours strike notice issued by another trade union, what is it
that is
there in law that makes it incompetent for a trade union to frame its
strike notice in such a way as to preclude certain
categories of its
members from commencing a strike on a certain day. And if a union can
do that, why can’t the employer rely
upon what the union has said
in its strike notice about which workers or categories of workers
will commence a strike on a specified
date? I know of no reason.
[95] After the issuing of a certificate of
non-resolution of a dispute by the CCMA or after the expiry of the
prescribed 30 days
period, a union and an employer may come together
and conclude an agreement that, if the union does call a strike,
certain of the
workers (i.e. a skeleton staff) will not take part in
the strike so as to continue performing certain duties. A good
example of
a workplace where this arrangement may be called for is a
hospital. The union may consider that it is in its interests to
enter
into such an agreement about a skeleton staff in order to
minimise the inconvenience and harm that the proposed strike may
cause
to the public or to third parties so as to gain public support
or sympathy for its demands. Such an agreement would, if it is in

writing, constitute a collective agreement as contemplated by the
definition of that term in sec 213 of the LRA.
[96] On my approach, such a collective agreement would
be valid and binding on the union and its members, on the one hand,
and,
on the employer, on the other. On my approach the employees who
have been identified as part of the skeleton staff in terms of
the
collective agreement would not be entitled to abandon their skeleton
staff duties and commence striking together with the other
employees
if subsequently the union issued a strike notice for the commencement
of the strike.
[97] On the interpretation of sec 64 (1) (b) advanced by
respondents such skeleton staff would be entitled to abandon their
skeleton
staff duties and join the strike on the day given in the
strike notice because on the respondents’ interpretation of sec 64
(1)
(b) once a union has issued a strike notice any and every
employee may commence striking on the day specified in the strike
notice.
Accordingly, if one takes the respondents’ interpretation
to its logical conclusion, then there is in our law no place for the

use of collective agreements to secure a skeleton staff during a
strike because such an agreement would not be worth anything in
law
and the skeleton staff would be entitled, once a strike notice has
been issued, to join the strike as well. In my view this
proposition
is completely untenable. In my view our law permits collective
agreements relating to the provision of skeleton staff
during a
strike and such agreements, once concluded, are binding on the
parties concerned including union members whose union is
a party to
such a collective agreement.
[98] Another way of putting the question confronting us
in this case is to ask the question whether or not a trade union that
gives
an undertaking to the employer in its strike notice that only
certain categories of employees or some of its members will commence

a strike on a specified date is or is not bound by that undertaking.
The effect of the interpretation of sec 64 (1) (b) advanced
by the
respondents is that a union that gives such an undertaking to the
employer in its strike notice is not bound by such undertaking
and it
is free, despite such an undertaking to the employer, to turn around
thereafter and instigate those of its members falling
outside the
strike notice to also commence striking on the day given in the
strike notice. The effect of my interpretation of
sec 64(1) (b) is
that a union is free, if it is so chooses, to limit or not to limit
the categories of employees to commence striking
on the day given in
the strike notice but, if it chooses to limit the categories of
employees to commence striking on a certain
day, it is bound by that
limitation. Accordingly, on my interpretation of sec 64 (1) (b), if
a union gave an undertaking to the
employer in its strike notice that
certain categories of employees will not commence striking on a
certain day, it is bound by
that undertaking and the employer is
entitled to rely on it to make certain decisions relating to the
strike or the dispute.
[99] The limitation is not necessarily that the other
categories of employees will never participate in the strike until it
ends.
It is only that they will not commence striking on the day
given in the strike notice and this means that they may not commence

striking on some other day, if they so wish, in which case a notice
of their intention to commence striking must be given before
they
commence striking on such a day. On my interpretation a union would
also be entitled to say in its strike notice that only
the employees
(for example its members) employed in certain departments or
categories will take part in the strike proposed to
commence on a
certain day and that employees employed in other departments or
categories will not take part in the strike at all.
If a union makes
such an undertaking in regard to its members, it is bound by it and
employees in the excluded categories may
not join the strike at any
time. On the respondents’ interpretation of sec 64 (1) (b) such an
undertaking by a trade union would
not be binding on the union and
its members and the union would be entitled, despite such an
undertaking, to later get its members
in the excluded departments or
categories to join the strike.
[100] Davis JA expresses the view in
par 10 of his judgment in this matter that “
…
the fact that a notice is provided by a significant group of workers
within the bargaining unit which proposed to strike is
sufficient to
ensure the necessary form of orderly industrial relations
”.
This view raises the question: what happens then when the group that
gave the strike notice is not a significant group? Let
us say a
company employs 1000 employees. It has a number of trade unions one
of which is the majority trade union and has 700 of
the 1000
employees as its members. Two other trade unions have 50 and 150
members respectively. The rest of the employees do not
belong to any
trade union. The union that has 50 members gives a strike notice to
the effect that its 50 members will commence
a strike on a certain
day. 50 employees out of a workforce of 1000 employees is,
undoubtedly, not a significant group of workers.
[101] If one took Davis JA’s above
mentioned view to its logical conclusion, striking by the rest of the
employees (i.e. the significant
group) on the strength of the notice
covering the insignificant group and without another notice being
given covering the significant
group, would adversely affect “
orderly
industrial relations
.”
This view suggests that the meaning to be attached to sec 64(1)(b) as
to whether it is competent to limit in a strike notice
the number or
categories of employees who will commence a strike on a day given in
a strike notice changes according to the size
of the group that
issues the strike notice. This suggests that the section means that,
if the prior notice has been issued by an
insignificant group,
another notice must be issued before a significant group can commence
striking because, otherwise, if the
significant group commences
striking without giving a notice of their commencement of the strike,
their striking will adversely
affect “
orderly
industrial relations
,”
but, if the notice has been issued by a significant group, and an
insignificant group seeks to commence striking too, the section
means
that no additional notice of the commencement of the strike by the
insignificant group is required. In my view the meaning
of sec
64(1)(b) should not change according to the size of the group that
issues the strike notice. Its meaning must be the same
in either
case. Either it is that by what you say in the strike notice you can
limit the categories or numbers of employees who
will commence a
strike on a given date or it means that you cannot so limit the
categories or numbers. When I refer to limiting
the categories or
numbers of employees who will commence a strike on a particular day,
I do not mean that the employees whom the
strike notice leaves out
will not be able to take part in the strike at any time. I only mean
that they cannot commence striking
on the strength of the strike
notice that does not cover them. Another strike notice will have to
be issued that will cover them
before they can commence striking on
the day given in such strike notice.
[102] Grogan: Workplace Law, 9
th
ed, Juta & Co does not deal at all with the issue whether in a
strike notice the union issuing the notice can limit the number
or
categories of employees who will commence striking on the day given
in the strike notice nor does he deal with the question
whether there
are any circumstances when a second notice can be required. Du Toit
et al: Labour Relations Law: A Comprehensive
Guide, 4
th
ed, Butterworths deal with the strike notice requirement at 283 –
286. At 286 they express the view that employees who are not
members
of the union that has issued a strike notice “
may
also join the strike, provided they give separate notice of their
intention to strike.
”
Unfortunately these authors do not substantiate their view in anyway
nor do they refer to any authority to support it. Thompson
&
Benjamin: South African Labour Law, Vol 1 deal with the issue of a
strike notice and lock-out notice at AA1 – 313 – 316
but do not
deal with the issue under consideration.
[103] Brassey: Employment and Labour
Law, Vol III deals with the requirement of a strike notice at A411 –
A4, A4 – A13. Although
he does not deal with the issue under
consideration in this matter, he expresses a view at A4 – 13 that a
union must give notice
in good faith and it “
cannot
mislead the employer by giving a false date [of the commencement] of
the strike. If it does so, the notice is vitiated by
fraud, will be
null and void and there will, accordingly, be no compliance with the
section.
” I have
previously expressed the view that employees are not obliged to
commence a strike on the date given in their strike notice
but as
from that date the employer is entitled not to use their services and
may use those of, for example, temporary replacement
workers. They
can commence their strike a day later or at any other time provided
it is within a reasonable time. That is before
they can be said to
have waived their right. What I do wish to say, which is linked to
Brassey’s view that a union “
cannot
mislead the employer by giving false information ….”,
is
that the proposition advanced by Counsel for the respondents and
accepted by my Colleagues has as one of its implications or
results
that a trade union may deliberately mislead the employer in its
strike notice. The implications of the respondents’ proposition

include that a trade union can say in its strike notice that only its
50 members employed in the Nongoma branch of the company
will
commence a strike on a given date well-knowing that in fact 5000
employees (including those who are not its members) employed
in every
city and small town in the country will commence striking on that
day. On the respondents’ proposition this is permissible
in our law
and the union’s conduct is permitted by sec 64(1)(b). How this
could conceivably be correct as a matter of law in
a dispute
resolution dispensation such as ours which seeks to promote orderly
collective bargaining is difficult to understand.
[104] In the light of all the above it seems to me that
the legal position is that the content of a strike notice is of
critical
importance in the determination of which employees or
categories of employees acquire the right to commence a strike on the
day
given in a strike notice. The content of a strike notice is of
critical importance for conveying to the employer concerned the
information that sec 64(1)(b) requires to be contained in a strike
notice. The employer depends largely on the content of that notice

for important decisions to make in relation to the proposed strike
such as the decision whether he is going to accede to the union’s

demands or whether he will make a final offer of settlement of the
dispute before the commencement of the strike so as to avoid
the
strike or whether he will make certain plans including arrangements
to employ temporary replacement workers for the duration
of the
strike and, if so, how many and in which workplaces, in order to
minimise the impact of the strike on his business.
[105] If the content of a strike notice tells the
employer that the workers who will commence a strike on a certain
date are members
of a particular union which forms 10% of the workers
but on the appointed date 90% of the workforce including workers who
are not
members of that trade union take part in the strike, that
will be contrary to the strike notice contemplated by sec 64 (1)(b)
of
the LRA. It seems to me that the legal position is that in order
of an employee to acquire the right to commence a strike on a certain

day he must first be covered by a strike notice in respect of the
commencement of the strike on that day. If he is not covered
by a
strike notice, he is not entitled to commence striking on that day.
Whether or not an employee is covered by a particular
strike notice
depends upon the contents of the strike notice and the context in
which the notice is issued. The contents of a strike
notice may be
formulated in such a way that the notice contemplates only members of
the union issuing the strike notice commencing
a strike on the day
specified in the strike notice. It may contemplate only employees in
a particular branch or city or province
or it may contemplate
employees who are its members employed by the company throughout the
country commencing a strike on the day
given in the strike notice.
Whatever the union issuing the strike notice chooses, it must make
the notice sufficiently clear to
enable the employer to know which
employees are covered by the strike notice and will, therefore,
commence a strike on the given
date. This does not necessarily mean
that the union should furnish the employer with names of the workers
who will take part in
the strike. It only means that the content of
the strike notice must be such that the workers who are covered by
the strike notice
must be reasonably identifiable by the employer
upon receiving the notice either by their names or their job
categories, union
membership or workplace or departments in which
they are employed or places where they are employed or by some other
information.
[106] The interpretation of sec 64(1)(b) must not be
undertaken in isolation. Appropriate regard must also be had to sec
66(2) and
sec 77 of the LRA. Before the interpretation of sec
64(1)(b) advanced by the respondents is accepted, it must be
remembered that
the same interpretation may have to be given to sec
66(2) and sec 77(1)(d) of the LRA. Sec 66(2) provides for the giving
of a notice
for a secondary strike. Sec 77(1)(d) provides for the
giving of a notice of protest action to NEDLAC. Once that is done,
particularly
in regard to sec 77, there may be disastrous
consequences for the country in the case of a country-wide protest
action. Sec 77(1)(d)
of the LRA requires a trade union or Federation
of trade unions seeking to call a protest action to give at least 14
days notice
before the commencement of a protest action to NEDLAC of
its intention to proceed with the protest action. If one applies the
respondents’
contention to sec 77(1)(d), it would mean that a small
unknown registered trade union can serve a notice of protest action
on NEDLAC
indicating that employees employed in one depot in some
small town will take part in a protest action from a certain day and
on
that day hundreds of thousands of workers from different companies
in all cities and towns of the country belonging to various trade

unions would go out to the streets and take part in the protest
action.
[107] Whatever steps NEDLAC could take or advise to be
taken in anticipation of the protest action would be confined to the
employer
in the small town specified in the notice of protest action.
Accordingly, the countrywide protest action would take NEDLAC and
numerous employers throughout the country by surprise because NEDLAC
would not have been able to give them any warning based on
the
contents of the notice of protest action. According to the
respondents’ contention in regard to sec 64(1)(b), such a result

would be acceptable and permissible in terms of the LRA.
[108] If one were to apply the respondent’s contention
to a notice of a secondary strike, it would mean that a small group
of
employees in a branch of a company based in some small town would
give their employer a notice of the commencement of a secondary

strike by them in support of a group of employees in a neighbouring
company but on the day of the commencement of the secondary
strike,
employees of the company in many cities, towns and villages
throughout the country could erupt into strike action on the
strength
of the notice that excluded them. The secondary employer would be
completely taken by surprise at the eruption of strikes
in places not
mentioned in the secondary strike notice and far away from the small
town in which the secondary strike was supposed
to be confined.
[109] At this stage I wish to revert to the fact that an
important factor which Lord Diplock took into account in using
purposive
construction to decide the Catnic case was why the patentee
would have intended the narrow limitation which was inherent in the

interpretation of his claims advanced by the defendants. Lord Diplock
found that he could not think of any reason and, instead,
said in
effect that the patentee could not have intended such a limitation on
his monopoly because it would have rendered his invention
or monopoly
worthless. Let me apply that in the present case. In this case the
respondents’ contention is to the effect that
in enacting sec
64(1)(b) the Legislature intended that a trade union can give a
strike notice to an employer that gives wrong information
about the
number of workers or categories of workers who will commence a strike
on a date given in the strike notice. For example
the union can say
only the workers based in the Nongoma branch of the company will
commence a strike on a certain day but actually
it intends that all
workers employed by the company in all cities and towns throughout
the country will commence striking on the
given day.
[110] The respondents argue that sec
64(1)(d) permits the other employees not contemplated in the strike
notice to also commence
striking on the day given in the strike
notice on the strength of the strike notice issued in respect of
other employees. Bearing
in mind the question asked by Lord Diplock
referred to above, we must ask the question why the Legislature would
have intended
that, where a strike notice issued to an employer,
informed the employer that employees A, B and C will commence a
strike on certain
day, employees D, E and F would also be entitled to
commence a strike on the same day even though no notice of their
commencement
of the strike has been given? I can think of no reason
why the Legislature would have intended that. On the contrary I think
that
the Legislature could not have intended that because that would
undermine, if no defeat, the very purpose of the statutory
requirement
of a strike notice. I think the interpretation that must
be given to sec 64(1)(b) must either be consistent with or promote or
give effect to the purpose of the section. In this case SATAWU’s
strike notice said in effect SATAWU members would commence striking

on the 18
th
December but the respondents argue that non-SATAWU members could
commence striking on that day as well on the strength of such
strike
notice.
[111] Both Khampepe ADJP and Davis JA seem to suggest
that, if employees who are not directly affected by a dispute giving
rise
to a proposed strike are not required to refer the dispute to
conciliation before they can join the strike, there is no reason why

another strike notice is said to be required before they can commence
striking. The suggestion is based on Afrox, Plascon-Decorative,
Early
Bird and SACTWU. The answer to this is that the considerations which
apply to the requirement for the referral of a dispute
to
conciliation are not the same as those which apply to the requirement
for the issuing of a strike notice. A good example is
that a group
of workers who are not members of a union which is in dispute with
the employer would as a general rule not be party
to such a dispute,
and if, you are not party to a dispute, you cannot refer such a
dispute to conciliation. You cannot refer someone
else’s dispute to
conciliation – at least not without authority from such a party.
You have no locus standi in such a matter.
So, as a matter of law
such employees would not be able to refer other employees’ dispute
to conciliation. And yet there can
be no doubt that, if they want to
help their co-employees in the latter’s dispute with the employer,
they are entitled to participate
in the strike, subject to all legal
requirements being satisfied. However, when it comes to the
requirement of notice, it cannot
be said that they have no locus
standi to issue a strike notice if the one previously issued did not
cover them. As long as they
propose to commence striking, they have
locus standi to issue a strike notice if they are not covered by one
issued earlier.
[112] The approach I am taking here is in line with the
approach underlying the procedural requirement for a protected
secondary
strike as provided for in sec 66 of the LRA. When
employees employed by one employer wish to support employees employed
by another
employer by striking, sec 66 of the LRA governs the
position. Sec 66 does not require such employees to refer the other
employees’
dispute to conciliation before they can strike but it
does require that a notice of such secondary strike be given before
such
employees can embark upon the secondary strike. This is
indicative of the fact that it is not foreign to the LRA that workers
who are not directly affected by a dispute underlying a (proposed)
strike need not refer such a dispute to conciliation if they
want to
also strike to support those who are directly affected by the dispute
but are, nevertheless, required to issue a strike
notice. There is,
therefore, nothing incongruous with Afrox, Plascon Decorative, Early
Bird and SACTWU in taking the view that
a strike notice covering the
respondents was required before they could commence striking even
though they were not required to
refer the dispute to conciliation.
[113] In this case the interpretation
of sec 64(1)(b) that I have chosen, in my view, gives effect to
orderly collective bargaining
which is one of the primary objects of
the LRA, is not in conflict with the Constitution and cannot possibly
be in conflict with
any public international law obligations of the
Republic. In this regard I have had regard to the Freedom of
Association and Protection
of the Right to Organise Convention No 87
of 1948, the Right to Organise and Collective Bargaining Convention
No 98 of 1948 and
the Freedom of Association Digest of Decisions and
Principles of the Freedom of Association Committee of the Governing
Body of
the ILO, 4
th
(revised) ed (ILO, Geneva, 1996) and there is nothing therein which
is in conflict with the interpretation I have chosen.
[114] In conclusion I reject the construction of sec
64(1)(b) of the LRA advanced by Counsel for the respondents as a
construction
that, contrary to the injunction in sec 3 of the LRA,
promotes not only disorderly collective bargaining but will also
usher in
an era of chaotic collective bargaining in our labour
dispute resolution system.
[115] In the circumstances the appeal must be upheld.
With regard to costs I am of the view that the requirements of the
law and
fairness dictate that no order as to costs should be made in
this matter. The appellant and SATAWU continue to have a relationship

in respect of at least those of the appellant’s employees who are
members of SATAWU.
[116] In the premises I would make the following order:
The appeal is upheld.
No order as to costs is made on appeal.
The order of the Labour Court is set aside and for it
the following order is substituted:
“
(a) It is hereby declared that
the second and further applicants were not members of the first
applicant at the time of the issuing
of the strike notice on the 15th
December 2003 nor were they such members during the strike that
commenced on the 18
th
December 2003 and ended on the 2
nd
January 2004.
It is hereby declared that the
second and further applicants’ participation in the strike from
the 18
th
December 2003 to the 2
nd
January 2004 was unprotected.
The dismissal of the second and
further applicants by the respondent for participation in the
strike on the 18
th
December 2003 to the 2
nd
January 2004 was not automatically unfair.
Leave is hereby granted to any party to approach
the registrar with a request that this matter be set down for the
continuation
of the trial on other issues if any still remain to be
adjudicated.
Should the request referred to in (d) above be made
to the Registrar, the Registrar is directed to give the matter high
priority
in the light of the long period that has lapsed since the
dismissal of the second and further applicants.
If either party wishes to pursue the matter, the
parties are required to apply their mind to the issue whether it
should continue
before Ngcamu AJ who heard the matter previously or
whether it should or can proceed before another Judge and advise
the Registrar
in writing of their respective positions in this
regard.”
ZONDO JP
KHAMPEPE,
ADJP
[117] This is an appeal, with the leave of the court, against the
judgment and order of the Labour Court, in which the dismissal
of the
individual employees on 18 November 2004 by the appellant was found
to be automatically unfair in
terms
of section 187(1)(a) of the Labour Relations Act no 66 of 1995 (“the
Act”).The Labour Court further granted the order
reinstating the
employees with back pay.
[118] There are two crisp issues to be determined in this appeal.
The first issue relates to whether the individual employees
who
participated in the strike on 18 December 2003 were members of the
First Respondent at the time of their participation in the
strike.
The second issue relates to whether the individual employees, who
were not members of the First Respondent which had complied
with the
pre-strike procedures in terms of section 64(1) of the Act, were
entitled to lawfully participate in the ensuing strike.
[119] The
facts are largely common cause and are briefly recited here only to
contextualize the issues and to put them in a proper
perspective.
FACTUAL BACKGROUND
[120] The
appellant is an aviation logistics company which provides services on
the ramps and runways of South Africa’s six major
airports.
Approximately 2 196 employees are in its employment. Approximately 1
157 of these employees are in permanent employment
whilst the balance
constitute contract workers. Of the 1 157, approximately 725 (70%)
are members of the First Respondent.
[121] The
First Respondent is a majority trade union and is the recognised
collective bargaining agent of the workers employed
by the appellant.
An agency shop agreement is in force. On 13 November 2003, the First
Respondent referred a wage dispute to the
Commission for
Conciliation, Mediation and Arbitration (“the CCMA”) for
conciliation in terms of Section 64(1)(a) of the Act.
[122] On
15 December 2003, the CCMA issued a certificate to the effect that
the dispute between the First Respondent and the appellant
remained
unresolved. On that day the First Respondent issued a strike notice
to the appellant advising it of its intention to embark
on a strike
action on 18 December 2003 at 08h00.The notice was couched in the
following terms:
“
We intend to embark
on strike action
on 18 December 2003 at 08h00.”
[123] Pursuant
to that notice, a strike duly commenced on 18 December 2003 and
ceased only on 2 January 2004.
[124]
What is notable is that not only the members of the First Respondent
participated in the strike but the individual employees
(further
respondents) also participated. These employees were subsequently
dismissed by the company for unauthorised absenteeism
following their
participation in the strike which the employer viewed as unlawful.
[125] The
First Respondent thereafter referred the dispute concerning the
fairness of the individual employees’ dismissal to
the CCMA. As
conciliation became unsuccessful the matter laid before the Labour
Court for adjudication.
[126] On
15 June 2006 the Labour Court made the following principal findings:
It held that the individual employees were members of the First
Respondent at the time of their participation in the strike
action.
It also held that the Act did not require individual employees to
be members of the First Respondent which had complied with
the pre
strike procedures in terms of the Act in order for them to lawfully
participate in the strike.
The Act did not require the individual employees to be members of
the First Respondent in order for them to lawfully participate
in
the strike.
The strike was protected in respect of the individual employees and
their dismissals were accordingly automatically unfair.
[127] The
appellant is challenging the findings of the Court below.
I now turn
to deal with the first issue before us.
Were the individual employees, members of
the First Respondent at the time of their participation in the
strike
?
[128] In
terms of the pre-trial minute, the court below was required to
decide:
“
4.2 … whether
[the
individual employees]
met the criteria
for membership as stipulated in the constitution of
[SATAWU]
prior to engaging in the strike action
on 18 December 2003
.”
2
Section
9.3 of the Constitution of the First Respondent stipulates the
procedure through which First Respondent membership is conferred.
[129] The
procedure to be followed for First Respondent’s membership in terms
of the Constitution is replete with requisite steps
to be taken by
various organs of the First Respondent at various stages of the
consideration of the relevant application and the
requisite
recommendations to be taken into account in the final determination
of the application.
[130] The
application procedure as set out in SATAWU’s Constitution provides
as follows:
“
Application
procedure
Applications from eligible workers for
membership must be submitted to the LOB’s
[Local
Office Bearers]
having jurisdiction
over the area in which the applicant is employed. The LOB’s must
submit the application form to the
Regional Secretary having
jurisdiction over the area in which the applicant is employed.
If there is no functioning LOB’s then the application must be
submitted directly to the Regional Secretary. If there is no
functioning Regional Secretary then the application must be
submitted to the General Secretary or any person or body
designated
by the General Secretary.
The application must be made in the
prescribed form and include the subscription fee set out in
paragraph 10.1. The CEC
[Central
Executive Committee]
must determine
the prescribed application form
.
The RWC
[Regional
Working Committee]
must recommend to
the REC
[Regional Executive
Committee]
that it either enrol the
applicant as a member or reject the application.
The REC must consider the recommendations of the RWC.
If there is no functioning RWC or REC, the
CEC or such other body as the CEC may appoint must consider the
application
. …”
[131] It is common cause that not a shred of evidence was led on
behalf of the individual employees on what steps they had taken
in
order to properly comply with the requisite procedure for membership
as stipulated in the constitution. Equally no evidence
was led on
their behalf that they had been duly appointed in terms of the
Constitution as members of the First Respondent. The
only evidence
led on behalf of the individual employees was that membership
applications and stop order forms were handed over
to the Appellant
after the strike had commenced.
[132] Du
Preez on behalf of the Appellant also testified that in order to
prepare for trial, the appellant had requested copies
of the
agendas/minutes of meetings for the period 1 January 2003 until 30
June 2004 in regard to SATAWU’s RCW, REC and CEC
[133] The
central feature of his evidence was that upon inspection of these
documents, he was unable to find any information evincing
the
individual employee’s compliance with the procedures for
membership. He was therefore unable to ascertain, whether such
membership had been conferred in terms of the Constitution. This
evidence was not challenged by the Respondents and remained
uncontroverted.
[134] The
court below however found that the individual employees were members
of the First Respondent and its reasoning was stated
as follows:
“ … The common cause fact is that the stop order forms were sent
to the respondent. That, in my view, could only happen when
the
First Respondent has accepted the applicants as members. The
applications for membership were completed on various dates between

November 2003 and January 2004.
”
3
[135] In
this appeal, Mr Gauntlet, who appears on behalf of the Appellant,
attacked the court below’s finding that the individual
employees
were First Respondent’s members on the ground that no evidence was
presented that the individual employees had complied
with the
Constitution.
[136] Mr
Van der Riet who appears on behalf of the Respondents submits that
the court below was correct in accepting that the stop
order forms
were adequate proof that the individual employees’ membership had
been approved. He further submitted that it was
inconceivable that
the First Respondent would furnish stop order forms to the Appellant
if the applications for membership of the
individual employees had
not been approved.
[137] It
would seem to me that the court below lost sight of the question it
was directed to consider in terms of the pre-trial
minute, which was
simply whether the individual employees had complied with the
procedure set out in the First Respondent’s Constitution.
That
consideration required the First Respondent to prove the procedure
followed in terms of clause 9 of its Constitution.
[138] It is plain that as the individual
employees were relying on the existence of their membership, they
bore the
onus
of establishing that their application for membership had been
submitted and considered in terms of the Constitution. The
elementary
principle that he who avers must prove, is such a
well-recognised principle in regard to the burden of proof that no
authority
need be cited.
4
In
casu,
the
application procedure, set out in the Constitution, stipulates
specific procedures that must be fulfilled upon submission of

applications for membership from eligible workers to the Local Office
Bearers (LOB’s). It further stipulates the requirements
that must
be fulfilled by the various organs of the First Respondent before the
application is finally determined.
[139] In
the court below, the First Respondent and the individual employees
did not lead any evidence, even obliquely, in support
of their
contention that the relevant employees’ applications had been
considered and approved in terms of the Constitution at
the time of
their participation in the strike. My view
in this regard is further fortified by the fact
that the court below ostensibly accepted that some of the relevant
applications
for membership were completed
well
after
the commencement of the strike on
18 November 2003(Own emphasis). In this regard it observed that “
The
applications for membership were completed on various dates between
November 2003 and January 2004
.” On
the court’s own observation, the issue of when the application
forms were submitted by the respective individual employees
was
obfuscatory to say the least. This is so because if some applications
were completed after the strike had commenced, it would
be
inconceivable that the relevant applicants would have been admitted
as members of the First Respondent in terms of the Constitution
on or
before 18 November 2003 when the strike action commenced.
[140]
Moreover, it is common cause that the stop order forms were
submitted to the Appellant after the strike had already commenced.

Ineluctably the stop order forms could not, in themselves, have
established that the relevant employees were members of the First

Respondent or evinced that the relevant provisions of the First
Respondent’s Constitution had been complied with, prior to or
at
the time of their participation in the strike on 18 November 2003.
[141] For these reasons, I find that the
Respondents failed to discharge the
onus
of proving that the individual employees were members of the First
Respondent in terms of the Constitution at the time of their

participation in the strike. In the result, the court’s finding
that the individual respondents were members of the First Respondent

at the time of the strike is, with respect, wrong and should be
reversed.
I now turn
to deal with the intricate issue of whether the individual employees
lawfully participated in the strike action on 18
November 2003.
“
Were
the individual employees, employed in the same bargaining unit,
entitled to lawfully participate in the strike action?”
[142] It will be convenient at this stage to set out in broad
outline the constitutional legal framework within which this issue

must be comprehended.
[143]
Section 23(2) (c) of the Constitution confers upon every worker the
right to strike.
[144]
Section 36 of the Constitution permits limitation of this right only
to the extent that the limitation is reasonable and
justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account all relevant factors,
including:
“
(a) the nature
of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
Less restrictive means to achieve the
purpose.
”
“
Interpretation of Bill of Rights
Section39
of the constitution provides that:
[(1) when interpreting the Bill of Rights, a court, tribunal or
forum –
(a)
must promote the values that underlie an open and democratic society
based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum must
promote the
spirit, purport and objects of the Bill of Rights.
(3) The Bill of Rights does not deny the
existence of any other rights or freedoms that are recognised or
conferred by common law,
customary law or legislation, to the extent
that they are consistent with the Bill.
”
[145]
Section 213
of the
Labour Relations Act
(“
the Act
”)
defines the strike to denote:
“
the partial or complete concerted refusal to
work, or the retardation or obstruction of work, by persons who are
or have been employed
by the same employer or by different employers,
for the purpose of remedying a grievance or resolving a dispute in
respect of any
matter of mutual interest between employer and
employee, and every reference to ‘work’ in this definition
includes overtime
work, whether it is voluntary or compulsory.
”
[146]
Section 64(1) of the Act grants to every employee the right to
strike. The right to strike is however not absolute. It accrues
to
an employee only if certain conditions as set out in that section are
fulfilled.
[147]
Section 64(1) reads as follows:
“
Every employee has the right to strike and
every employer has recourse to lock-out if –
the issue in dispute has been referred to a council or to the
Commission as required by this Act, and –
a certificate stating that the dispute remains unresolved has
been issued; or
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral

was received by the council or the Commission; and after that –
(b) in the case of a proposed strike, at least
48 hours’ notice of the commencement of the strike, in writing, has
been given
to the employer, …
”
[148] The key issue raised in the appeal is whether employees, who
are not members of the First Respondent which has followed
pre-strike
procedures set out in section 64, are precluded from lawfully
participating in the ensuing strike, unless they themselves

separately followed the pre-strike procedures in the Act. The Act is
silent on who must refer the dispute to the CCMA and who must
give
notice of the strike to the employer.
[149] In
this regard Mr Gauntlet argued that on a proper construction of
Section 64, an employee only acquires the right to strike
if;
33.1 the employee or someone acting on his behalf (alternatively,
the other party to the dispute, namely, the employer) has referred

the dispute to the CCMA;
33.2 the CCMA has issued a certificate of non-resolution or 30 days
has elapsed; and after that
33.3 the
employee or someone acting on his behalf gives notice to the employer
of the proposed strike.
[150] He
therefore contended that in respect of employees who are not members
of the First Respondent that has followed pre-strike
procedures,
there would have been no referral of a dispute to the CCMA and no
notice of industrial action to the employer. These
employees would
not have satisfied the prerequisites of section 64(1) and are
proscribed by the Act from exercising their right
to strike.
[151] The
cardinal question that arises is whether the provisions of section 64
require non-unionised employees or members of minority
unions who are
employed by the same employer to refer the dispute to the CCMA and to
give notice of the strike action to the employer,
notwithstanding
that the issue in dispute has already been conciliated albeit by
other parties to the dispute, and notice has been
issued by the
majority union before they can lawfully participate in a lawful
strike action. The consideration of that question
is inevitably one
of construction.
[152] There are certain elementary principles of
construction to be observed in the interpretation of the provisions
of the Act,
from which we will not depart.
5
[153] Mr
Gauntlet and Mr Van der Riet both submitted, correctly so, and
consistent with these principles that in order to arrive
at the
correct interpretation of section 64(1) regard must be had to the
purpose of the Act in general as well as to the specific
purpose of
the section.
[154] The primary objects of the Act are: to give effect to and
regulate fundamental rights; to give effect to International
Labour
Organisation obligations; to provide a framework for and to promote
orderly collective bargaining; to promote employee participation
in
decision making at the workplace and to promote the effective
resolution of labour disputes. The overriding purpose of the
Act is
to advance economic development social justice, labour peace and the
democratisation of the workplace. It is trite that
the right to
strike is an extension of the bargaining process.
[155] Section 3 of the Act contains a further
interpretive injunction. It provides that the Act must be interpreted
to give effect
to its primary objects (
National
Union of Metalworkers of South Africa and Others v Bader Bop (Pty)
Ltd and Another
)
6
.
There is a wealth of judicial authorities in which the purpose of
section 64(1)’s procedural requirements has been succinctly
and
authoritatively decided. These decisions clearly demonstrate that the
procedural purpose of this section is to compel the parties
to
attempt to resolve the dispute through negotiations before resorting
to industrial action (
Afrox Ltd v SACWU
and Others
;
7
Transportation Motor Spares v National
Union of Metalworkers of SA and Others;
8
Plascon Decorative (supra)
329B-C);
9
Early Bird Farm (Pty) Ltd v FAWU and
Others
;
10
The academic writers, Helen Seady and Clive Thompson In “
Labour
Relations Act 66 of 1995
: Strikes and Lock-Outs
”
11
,
are also of the view that:
“
Conciliation is not intended as just another
perfunctory step on the way to winning the licence for action. It is
the process sponsored
by the Act to promote the adjustment of
competing interests and industrial peace
.”
[156] Mr
Gauntlet raised several arguments on why the individual employees
were required to refer the dispute to conciliation in
terms of
section 64(1)(a) and why they were also required to issue notice in
terms of section 64(1)(b).The golden thread that runs
throughout the
woven tapestry of his arguments, is that unless these requirements
were satisfied, no meaningful conciliation would
take place as the
employer would not know the identity of all the parties with whom it
is negotiating and would not enter the conciliation
process with its
eyes wide open ; it would not be in a position to determine the
potential scale of the impeding strike. It was
contended that such an
employer would not be able to make appropriate decisions as to who of
the employees intended to embark on
a strike if it were not informed
of their identities and would therefore be unable to take contingency
arrangements to protect
its business.
[157] In my view, the question that arises is
whether the individual employees were required to refer the same wage
dispute with
the Appellant for conciliation, notwithstanding that the
First Respondent had already referred the dispute to the CCMA. In
this
regard one has to be mindful that the dispute which had been
referred by the First Respondent for conciliation
directly
affected the individual employees as they were in the same bargaining
unit. (Own emphasis) Notably the issue in dispute over which
the
individual employees went on strike against the same employer was the
same dispute which had already been referred for conciliation.
Purpose of
sec 64(1)
[158] In determining these questions, one must be mindful that
firstly, the purpose of section 64(1)’s procedural requirements

only obliges employees to initially explore possible resolution of
their dispute through negotiations by a statutory conciliator
before
exercising the right to strike. The right to strike accrues to an
employee only after the conditions set out in the Act
have been
complied with.
[159] Secondly Section 64(1) (a) only requires
the “
issue in dispute
”
to be referred to the CCMA whilst section 213 defines the issue in
dispute as “
the demand, grievance or
the dispute that forms the subject matter of a strike
“.
In
Plascon Decorative
12
it was held that the broad terms of the definition of “
strike
”
correspond with the definition of “the issue in dispute”. The
court found that that offered no identification of the parties
in
dispute and therefore imposed no limitation on what they may be. It
would seem to me that on the basis of that decision, it
would not be
necessary for the non-unionised employees or members of minority
unions of the Appellant to refer the wage dispute
for conciliation.
Once a union refers the wage dispute for conciliation and the dispute
is not resolved within the stipulated time,
all the employees who are
in the bargaining unit (whether unionised or non- unionised) of the
same employer and have an interest
in the dispute, are entitled to
participate in the strike., provided the union has issued a strike
notice.
[160]
There is a further flaw in the argument presented by the Appellant.
The notion that no meaningful conciliation takes place
when the
employer does not know the identity of all the parties and is
therefore rendered incapable to properly determine the potential

scale of the impending strike, is in my view, not compelling as it
rest on a very shaky foundation. It presupposes that the referral

made on behalf of members of a trade union, ordinarily expose such an
employer not only to the identity of all the members of the
First
Respondent but to the determination of the total numbers of employees
that are likely to participate in the strike.
[161] The problem is that it is not so. The
wealth of judicial authorities in this regard is clearly for the
proposition that an
employer is not entitled to the identities of the
parties to the dispute. The case, which is dispositive of this
argument is that
of
Afrox Ltd v SACWU
and Others
13
in which Zondo AJ, as he then was,
enunciated the fundamental principle that where members of a trade
union employed in one branch
of a company or in one bargaining unit
are entitled to strike in support of a dispute between themselves and
their employer, their
colleagues employed by the same employer in
another branch or in another bargaining unit also have a right to
participate in that
strike in respect of that dispute without having
to make a separate referral of the dispute to conciliation.
[162] The principle enunciated in
Afrox
was confirmed by this Court in
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Limited
14
para 29 in the following terms:
“
The Issue in the present case is whether
non-bargaining unit employees, whose conditions of service the strike
demand did not directly
affect, can ‘embark’ on an otherwise
protected strike. That parallels the question Zondo AJ dealt with in
Afrox Ltd v S A Chemical
Workers Union and Others, where workers
employed by the same employer at different plants embarked on strike
action. Zondo AJ concluded
… that ‘once a dispute exists between
the employer and a First Respondent and the statutory requirements
laid down in the Act
to make a strike protected have been complied
with, a First Respondent acquires the right to call all its members
who are employed
by that employer out on strike and its members so
employment acquire the right to strike’.
”
[163] In
Early Bird
Farm Ltd v Food and Allied Workers Union and Others
15
this Court
confirmed the proverbial
principle established in Afrox Ltd and expressed these sentiments in
regard to that inveterate principle:
“the principle established in Afrox and other case is that once a
union has complied with the requirements of s
64 by referring a dispute to conciliation it is not necessary to
refer the same dispute
again to conciliation when other members of
the same union who are employed by the same employer want to joint
the strike in respect
of the same dispute which is protected. They
can join the strike even if they are not directly affected by the
dispute as long
as the dispute was referred to conciliation. This is
the legal position as correctly pronounced in Afrox, Plascon
Decorative and
Free State and Northern Cape Manufacturers
Association.
”
[164] There is nothing in the cases cited above that supports the
proposition that an employer is entitled to know the identity
of the
employees who are entitled to participate in the protected strike.
What is instructive, as Mr Van der Riet has submitted,
is that where
the employer employs union members and only some of them have an
interest in the outcome of the dispute, the employer
is in no better
position to know the identity of all the members of the union likely
to participate in the strike since all the
members of the First
Respondent employed by same employer are entitled to participate in
the strike.
[165] It accordingly follows that such an
employer is in no better position to determine the potential scale of
the impending strike.
The nub of the question is, when regard is had
to the contention relied upon by the Appellant, whether the Act can
be construed
to require non-unionised employees to refer the same
dispute for conciliation merely on the basis that the referring union
has
no mandate to act on their behalf. A review of authorities in
this regard clearly states that once a dispute has been referred for

conciliation, the same dispute cannot be referred to conciliation for
the second time. I have elsewhere in this judgment cited
the cases of
Afrox, Plascon Decorative, Early Bird
Farm, SACTWU v Free State and Northern Cape Clothing Manufacturers
Association
[2002] Vol
1 BLLR 27
(LAC)
para 32
16
in which this inveterate principle was expounded following the
relevant section’s exegeses by this Court. In
Transportation
Motor Spares v National Union of Metalworkers of South Africa and
Others
(1990) 20 ILJ 690 (LC)
17
Zondo JA reasoned that:
“
The legislature wanted to ensure that,
before a strike can be resorted to, various steps would have to be
taken to try and avoid
it because of the harm and pain it may
inflict. There is a possibility that conciliation can help avoid
that. Once attempts through
conciliation to avoid a strike have
failed, and the workers are determined to strike, before the strike
can commence the legislature
gives the employer the last opportunity
to avoid the strike or to prepare for it.
”
[166]
Whilst the facts in these cases did not directly relate to the issue
of non-unionised employees or members of minority unions,
there is in
my view, no justification for not extending the same reasoning -
employed by this court for unarguably such a considerable
period - to
non-unionised employees for the reasons which are cited hereunder.
[167] The golden thread that runs through the
reasoning in these cases is the fundamental recognition of
the
purpose of the procedural requirements of section 64(1); that is,
before the employees can exercise the constitutional right
to strike
they must attempt to avoid the strike through negotiations by
statutory conciliators. In my view this rational makes
it palpably
clear that once that step has been taken, it would be futile to refer
the same dispute for conciliation as the purpose
of referral would
have been already served
.
[168]
The logic, in
my view, behind this reasoning is a very sound one. It recognises the
fundamental purpose for the referral which
relates not to the
identity of the employees but to the necessity to comply with the
conditions set out in section 64(1) before
the constitutional right
to strike can be exercised
[169] The Constitutional Court, in the case of
State v Zuma
18
,
has emphasised that a constitutional right conferred without express
limitation should not be cut down by reading implicit restrictions

into them (see Cameron JA in
Plascon
Decorative supra)
19
.
This Court has not once departed from
that constitutional interpretative caution. In
Plascon
Decorative
, Cameron JA cautioned
against reading into section 64(1) limitations upon the right to
strike which are not specifically provided
for in the Act. In
Early
Bird Farm (Pty) Limited,
20
this Court again heeded this salutary interpretative approach. In the
context of this case, I can conceive of no justifiable basis
for
departing from the well established principles enunciated in the
cases referred to herein above and for negating a salutary

interpretive approach which seeks to assert the constitutional right
to strike and enhance collective bargainig. In my view it
can hardly
have been the intention of the legislature to treat employees
differently. Such a distinction in terms of applicable
procedures to
be satisfied by employees that have a constitutional right to strike,
would defeat the objects of the Act which is
to attain industrial and
economic peace and promote collective bargaining. I deal with this
issue further in this judgment.
21
[170] In the light of the above, we hold a firm
view that there is no legal basis for reading into section 64(1),
limitations upon
the right to strike of non – unionised employees
22
which are not expressly provided for in the Act. In our view, where
the majority union has referred a dispute for conciliation
and the
dispute directly affects other non- unionised employees and/ or
members of minority unions in the bargaining unit, it is
not
necessary for the latter to refer that dispute for conciliation
separately. The construction contended for by the Appellant
would
impose limitations on a constitutional right for which the
legislature did not intend. Such a construction would amount to

treating employees of the same employer differently on issues which
are at the heart of collective bargaining and may sow the seeds
of
both disorders which the primary object of the Act seeks to obviate.
[171] To
require non-unionised employees to separately refer the dispute,
would place a limitation to a constitutionally protected
right with
no textual justification: It would further mean that the legislature
intended to draw a distinction in the application
of procedures set
out in section 64(1) between members of the First Respondent and
other employees which would constitute an absurdity.
If the
legislature intended to distinguish between the procedures to be
satisfied by different categories of employees employed
by the same
employer before the strike may be lawful, it would have explicitly
expressed itself in that regard in the Act and it
has clearly not
done so.
STRIKE NOTICE
[172] As
already stated herein above, it is the contention of the Appellant
that on a proper construction of section 64(1)(b),
the individual
employees were required to issue separate strike notices and that
their failure to do so precluded them from participating
in the
protected strike action.
[173] In support of its contention in this
regard, the appellant sought further reliance on the academic
writings of Du Toit and
Others in Labour Relations Law,
23
wherein it was stated:
“
Once notice of a strike has duly been given,
a union is entitled to call out on strike all its members employed by
the employer
and not only those members who are in dispute with the
employer. This includes employees outside the bargaining unit and/or
in
different operations as long as they are implied by the same
employers. Employees who are not union members may also join the
strike,
provided they give separate notice of their intention to
strike
.”
Lamentably, there is paucity of reasoning for this
conclusion. The learned authors adopt that conclusion without
providing any basis
therefore. Their stance goes against the grain of
authorities from which the seminal principles by
inter
alia
Zondo JP and Cameroon JA were
enunciated with such clarity and to date stand as good authority for
our developing Labour Law jurisprudence.
In the result, I do not find
the proposition and concomitant argument compelling.
[174] The
court below, upon an examination of this issue, found that to require
non-unionised employees to issue separate notices
would be too
technical and constitute an absurdity which the legislature could not
have contemplated. We agree. It is instructive
that the appellant
argues on one hand that the section properly construed, requires
employees who are unaffiliated to a union to
issue a strike notice in
order to comply with section 64(1) (b) procedures whilst on the other
hand it states that:
“…
All that is required is that someone has
followed the pre-strike procedures on behalf of those who intend to
strike. It is not the
appellant’s contention that each individual
must separately follow these procedures
”.
This
argument is inherently contradictory.
[175]
Given the above, I conclude therefore that on a proper construction
of sec 64(1) of the Act, all employees – non-unionised
employees or
members of minority unions- are entitled to lawfully participate in
the industrial action, as long as the majority
union has referred the
strike for conciliation in terms of sec 64(1)(a) and a section
64(1)(b) notice has been issued, by the majority
union.
175.1. There is no provision in the Act that expressly prohibits
participation by employees in a strike action. Importantly Section
64
does not qualify an employee to strike. Quite to the contrary, it
spells out the conditions which must be satisfied before a
right to
strike can be exercised.
175.2 I have already alluded to an important constitutional
principle of interpretation; that when one construes the provisions

of the Act, one must adopt an interpretation which is more consistent
with the Constitution. In this regard the right to strike
is one that
the Constitution has conferred upon all the employees. The effect of
the interpretation contended for by the appellant
would limit
participation of non-unionised employees or members of minority
unions, who are directly affected by and have a material
interest in
the wage dispute from exercising their right to strike in
circumstances where the conditions set out in sec 64(1) have
been
satisfied, without any obvious justification and would result in an
absurdity that the legislature would not have contemplated.
175.3 Having regard to the above, I am of the view that, on a proper
construction of section 64(1) (b), the employer is only entitled
to
notice of the commencement of the strike and it is not entitled to be
informed of the identity of the employees who will participate
in the
strike. Given that view, the finding of the court below that the
dismissal of the individual employees on 18 November 2003
by the
respondent was automatically unfair in terms of section 187(1)(a) of
the Act, should be confirmed.
THE RELIEF ORDER
[176] Mr Gauntlett and Mr Van der Riet have drawn
our attention to the fact that the court below made an order, at the
request of
the parties, that the issue of damages would be postponed
sine die
.
24
We agree with the submission that the order reinstating the
individual respondents with back pay was, in the circumstances, an

obvious error that should be set aside.
[177] In
the result, the following orders are made:
1. The order of the court below, that the individual employees were
members of the First Respondent (SATAWU) when they participated
in
the strike action is reversed and is replaced with the following:
“
The individual employees were not members of
the First Respondent
” (SATAWU) when
they participated in the industrial action on 18 November 2006.
2. The
Relief Order is set aside.
3. Save
for the above, the appeal is dismissed.
4. The requirements of the law and fairness dictate that there
should be no order as to costs.
________________________________
S S V KHAMPEPE
ACTING DEPUTY JUDGE PRESIDENT
AUTHORITIES
1. Statutes considered:
1.1
The Constitution
of the Republic of South Africa;
1.2
The
Labour Relations Act: section
64(1).
2.
Afrox Ltd v SA
Chemical Workers Union & Others
(1)
(1997) 18 ILJ 399 (LC).
3.
Chemical Workers
Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20 ILJ 321 (LAC).
4.
SACTWU v Free
State & Northern Cape Clothing Manufacturers’ Association
[2002] 1 BLLR 27
(LAC).
5.
Early Bird Farm
(Pty) Ltd v Food & Allied Workers Uniont & Others
(2004) 25 OLJ 2135
(LAC).
6.
Labour Relations
Law
(4ed) (Du Toit
et
al
Lexis Nexis Butterworth (2003) @
286.
7.
The South African
Law of Evidence
4
th
edition (Hoffman & Zeffert) pg 495-509.
8.
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Construction
Building & Allied Workers Union
(2)
(1997) 18 OLJ 671
(LAC).
9.
Business South
Africa v Congress of South African Trade Unions
(1997) 18 ILJ 474 (LAC).
10.
National Union
of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and
Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC).
11.
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC).
12.
Transportation
Motor Spares v National Union of Metalworkers of SA and Others
(1999) 20 OLJ 690
(LC).
13.
Public Service
Association of SA v Minister of Justice and Constitutional
Development and Others
(2001) 22 OLJ
2302
(LC).
14.
Pillay v Krishna
1946 AD 496
& 952.
DAVIS JA:
[178] I have enjoyed the significant
advantage of reading the judgment prepared by Khampepe ADJP and
subsequently that of Zondo
JP. For reasons that follow, I agree with
the approach adopted by my colleague Khampepe ADJP and the order that
she proposes.
[179] The
main difference between the judgments of Khampepe ADJP and Zondo JP
turns on their respective approaches to statutory
interpretation. The
critical reasoning in the judgment of Khampepe ADJP is to be found in
paragraph 54 of her judgment which reads
thus:
“
To enquire non-unionised
employees to separately refer to dispute would place a limitation to
a constitutionally protected right
with no textual justification: It
would further mean that the legislature intended to draw a
distinction in the application of
procedures set out in
section 64(1)
between members of the First Respondent and other employees which
would constitute an absurdity. If the legislature intended
to
distinguish between the procedures to be satisfied by different
categories of employees employed by the same employer before
the
strike may be lawful, it would have explicitly expressed itself in
that regard in the Act and it has clearly not done so.”
[180] Section 64(1) of the Labour
Relations Act 66 of 1995 (“the Act”) reads thus:
“
Every employee has the right to
strike and every employer has recourse to lock-out if-
the issue in dispute has been
referred to a council or to the Commission as required by this Act,
and -
a certificate stating that the
dispute remains unresolved has been issued; or
a period of 30 days, or any
extension of that period agreed to between the parties to the
dispute, has elapsed since the referral
was received by the council
of the Commission; and after that-
in the case of a proposed strike,
at least 48 hours’ notice of the commencement of the strike, in
writing, has been given to
the employer,…”
[181] The key issue raised in this
appeal was whether employees, who are not members of the first
respondent which had followed
the procedures set out in section 64,
were precluded from lawfully participating in the strike unless they
had separately followed
the procedures set out in section 64. In
short was there a requirement that they provide their employer with a
separate notice
of their proposed intention to commence a strike.
[182] Zondo JP carefully examines the
notice which was provided by the first respondent. That notice
expressly stated ‘we intend
to embark on strike on 18 December 2003
on 08h00’. The learned judge president is thus correct that the use
of the word ‘we’
by first respondent connoted an intention on the
part of its members to embark on a strike on 18 December 2003.
[183] But
the key question remains: were employees who were not members of the
first respondent precluded from lawfully participating
in the same
strike without providing a separate notice? Expressed differently,
does section 64(1) of the Act impose an obligation,
whether expressly
or by implication, to non members of first respondent to provide
appellant with a separate notice?
[184] Zondo
JP contends that in order to interpret the Act one must:
“
always give an interpretation
that will promote the primary objects of the LRA, that will also be
incompliance with the constitution
and with the public international
law obligation of the republic. Accordingly, before you settle on a
particular interpretation
of any provision of the LRA, … it
requires you to stand back and ask you the question, does this
interpretation give affect to
any one or more of the primary objects
of the LRA is it in compliance with the constitution and with the
public international
law obligations of the Republic?”
para 28.
In my view, this approach needs some
refinement. Interpretation must always begin with the words employed
in the statute. Indeed
the very purpose of the traditional rules of
statutory interpretation was to attempt to control the context of the
words which
were so employed by the legislature. The golden rule of
interpretation, for example, attempted to restrict meaning to the
‘ordinary
meaning’ of the words employed in the provision and
authorised a departure under very strict circumstances. Further,
this aim
was pursued by restricting the sources of meaning, that is
to restrict the range of resources to which the interpreter could
access
so as to gain meaning to the context of the words so
employed; that is, the long title, the preamble and the headings were
regarded
as permissible aids to construction but then only in the
case of ambiguity .In this way, courts attempted to attain closure of
the text by producing a result which reflected only one statutory
message.
[185] With the advent of
constitutional democracy, the responsibility of the statutory
interpreter became more complex. A broader
contextual approach was
mandated. Context had to include core constitutional values ,the
historical background of the statute,
its purpose mediated through
the aims of the constitution as well as the relevant social
,political and economic context and, where
necessary, international
law. But this approach did not mean that the words of the statute can
be ignored. The judicial interpreter
commences with the text and then
seeks to engage in a dialogue with various contextual pointers, both
pro and anti, the initial
conclusion at which she arrives. .
[186] This
is not always an easy task. Take this case. Section 3 of the Act
provides that the interpretation must give effect to
the primary
objects of the Act ,being compliance with the Republic of South
Africa Constitution Act 108 of 1996 (the constitution)
as well as
with the Republic’s international law obligations. Section 27 (2)
of the constitution provides that every worker
has a right to strike.
This provision would favour the interpretation contended for by
respondents in this case but Zondo JP trumps
this set of
considerations by giving prominence to an objective of the Act as set
out in section 1, namely to promote orderly collective
bargaining
.The learned judge president the fortifies the critical importance
of this objective by the use of a series of hypotheticals,
which, in
my view are distinct from the facts of this case. He concludes that
the interpretation contended for by respondent would
give rise to
disorderly collective bargaining, accordingly the interpretation of
section 64 (1) as advanced by respondent is in
violation of the
primary objects of the act and constantly cannot be adopted.
[187] By contrast, if the court
starts with the wording of section 64 which , in turn gives effect
to section 27 of the constitution,
are that is a right to strike,
the following question arises : whether the reading of section
64(1)(b) to mean that notice connotes
the provision of a notice of
the commencement of the strike without having to encompass every
participant therein does violence
to the words of the provision or to
the overall purpose of the Act which in essence is to give effect to
the provisions of section
27 of the constitution. In my view, when
collective bargaining fails and a strike commences the fact that a
notice is provided
by a significant group of workers within the
bargaining unit which proposed to strike is sufficient to ensure the
necessary form
of orderly industrial relations. To read further
limitations to section 27 of the constitution does not appear to me
to be justified,
either in terms of the purpose of the Act or the
express wording of section 64 which, as I have already mentioned,
must be the
starting point of the enquiry. Nor does it appear to me
that the ILO jurisprudence particularly around Convention 87
provides
any clear support to appellants. With regard to the ILO,
James Atleson et al
International
Labour Law
(2008) and
regarding the approach to statutory interpretation, JR De Ville
Constitutional and Statutory
Interpretation
(2000) at 60
– 69.
[188] Much mention is made in this
case of analogous precedent. In
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20 ILJ 321 LAC at 327 Cameron JA (as he then was) described
the issue in that case as whether non bargaining unit employees

could strike even where their conditions of services were not
directly affected. That problem paralleled the question Zondo AJ
(as
he then was) dealt with in
Afrox
Ltd v SA Chemical Workers Union
& others (1) (1997) 18 ILJ 399 (LC)
where workers employed by
the same employer in different plants embarked on strike action.
Zondo AJ concluded that:
“
Once a dispute exist between an
employer and a union and the statutory requirements laid down in the
Act to make a protective strike
to be complied with, the union
requires a right to call all its members who are employed by that
employer out on strike and its
members so employed require the right
to strike
”. At 403I
If Cameron JA, who, correctly in my
view, approved of this dictum, found that workers who fell outside
the bargaining unit could
go on strike, notwithstanding that the
collective bargaining dispute did not involve them, then it is a
logical extension to conclude
that, if that process did not result in
disorderly bargaining, neither does the case when the additional
striking workers form
a part of the same bargaining unit but are not
members of the union. There really is little conceptual distinction.
[189] In
my view, there is no linguistic basis by which to restrict the ambit
of section of 64(1)(b) and thus limit the right to
strike in the
manner contended for by appellant. Accordingly, I agree with the
order proposed by Khampepe ADJP.
_____________
DAVIS JA
Appearances
COUNSEL FOR APPELLANT ADV J J
GAUNTLETT SC
ADV G A LESLIE
INSTRUCTED
BY HOFMEYR HERBSTEIN & GIHWALA INC.
COUNSEL
FOR RESPONDENTS ADV J G VAN DER RIET SC
INSTRUCTED
BY CHEADLE THOMPSON & HAYSOM INC.
DATE OF JUDGMENT 14 MAY 2009
1
O
ne trade union that comes to mind
which includes in its membership both labourers and professionals is
the National Health and
Allied Workers Union (NEHAWU). Some of its
members are nurses, whereas others are ordinary workers.
2
Record Vol 1 p 59 para 42.
3
Record Vol 12 pg 1032 para 24
4
Hoffman Zeffert in
The South
African Law of Evidence
4
th
edition Chapter 20 page 495; 509
See also Pillay v Krischna
1946
AD 946
@ 952.
5
See Chemical Workers Indusrial
Union v Plascon Decorative (Inland) (PTY) (Ltd)(1999) 20
ILJ321(LAC)@326 para18 for a comprehensive list of aothorities
See:
Business
South Africa v Congress of South African Trade Union & other
(1997) 18 ILJ 474 (LAC) at 476F-478I;
Ceramic
Industries t/a Betta Sanitary Ware v National Construction Building
& Allied Workers Union
(1997) 18 OLJ 671
(LAC) at 675E-I;
Carephone (Pty) Ltd v Marcus NO & others
(1998) 19 OLJ
1425
(LAC) para [8].
6
[2002] ZACC 30
;
2003 (3) SA 513
(CC).
7
[1997] 4 BLLR 375
(LC).
8
(1999) 20 ILJ 690 (LC).
9
[1998] 12 BLLR 1191
(LAC).
10
[2004] 7 BLLR 628
(LAC).
11
Part AA of Thompson & Benjamin “
South
African Labour Law Volume 1
”.
12
Supra.
13
Supra.
14
Supra.
15
Supra.
16
Supra.
17
Supra.
18
[1995] Vol 2 SA (1) (CC) at 651 para 15.
19
Supra.
20
Supra.
21
See paras 54-58.
22
Members of minority unions included.
23
4
th
Edition page 286.
24
Vol 12 page 1025.