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[2020] ZASCA 161
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National Union of Metal Workers of South Africa and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (6/2020) [2020] ZASCA 161; [2021] 3 BLLR 221 (SCA); (2021) 42 ILJ 475 (SCA); 2021 (4) SA 144 (SCA) (7 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 6/2020
In the matter between:
NATIONAL UNION OF METAL WORKERS
OF
SOUTH
AFRICA FIRST
APPELLANT
THE FURTHER DEFENDANTS AS SET OUT
IN PLAINTIFFS’ COMBINED SUMMONS
AND THE ANNEXURES THERETO SECOND
TO ONE HUNDRED
AND
SIXTY THIRD APPELLANT
and
DUNLOP MIXING AND TECHNICAL
SERVICES (PTY)
LTD FIRST
RESPONDENT
DUNLOP BELTING
PRODUCTS (PTY)
LTD SECOND
RESPONDENT
DUNLOP
INDUSTRIAL HOSE (PTY) LTD THIRD
RESPONDENT
Neutral
citation:
National
Union of Metal Workers of South Africa and Others v Dunlop Mixing and
Technical Services (Pty) Ltd and Others
(Case
no 6/2020)
[2020] ZASCA 161
(7 December 2020)
Coram:
WALLIS, MOLEMELA, SCHIPPERS, DLODLO
JJA and GOOSEN AJA
Heard
:
13 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be 09h45
on 7 December 2020.
Summary:
Interpretation of
statutes –– whether s 11 of the Regulation of Gatherings
Act 205 of 1963 applies to a picket authorised
by a registered trade
union pursuant to s 69 of the Labour Relations Act 66 of 1995 (LRA)
––picket under the LRA is
not a gathering - Regulations
of Gatherings Act inapplicable – appeal upheld.
ORDER
On
appeal from:
KwaZulu-Natal
Division of the High Court, Pietermaritzburg (Van Zyl J, sitting as
court of first instance).
1. The appeal is upheld with costs, including the costs
consequent upon the employment of two counsel.
2. The order of the high court is set aside and replaced
with the following order:
‘
1. An authorised picket in
terms of s 69(1) of the Labour Relations Act 66 of 1965 is not a
gathering to which s 11 of
the Regulation of Gatherings Act 205
of 1993 is applicable.
2. The plaintiffs are ordered to pay the costs of the
preparation and argument of the special case, such costs to include
those
consequent upon the employment of two counsel.'
JUDGMENT
Goosen
AJA (Wallis, Molemela, Schippers and Dlodlo JJA concurring)
[1]
Is a picket, organised
by a trade union in furtherance of a protected strike, a ‘gathering’
to which the provisions
of the Regulation of Gatherings Act, 205 of
1993 (the Gatherings Act) apply? That is the central question in this
appeal. The Kwazulu-Natal
Division of the High Court,
Pietermaritzburg, Van Zyl J, held in the affirmative.
[2]
The question came
before the high court in the following circumstances. The first
appellant is a registered trade union. Its members
are employed by
the respondents at their plants in Howick, KwaZulu-Natal. On 4 July
2012 the first appellant referred a labour
dispute to the Commission
for Conciliation Mediation and Arbitration (the CCMA). The dispute
remained unresolved and the CCMA duly
issued a certificate of outcome
to that effect. The first appellant accordingly gave notice of the
intention of its members to
embark upon strike action.
[3]
In furtherance of the
strike action, the first appellant authorised the holding of a picket
outside the premises of the respondents
at Induna Mill Road, Howick.
On 22 August 2012, the picket allegedly became a violent
demonstration in which damage to property
resulted. That day, the
Labour Court issued an order, at the instance of the respondents,
restraining the appellants from engaging
in unlawful acts. The order
included a ‘perimeter order’ prohibiting the holding of a
picket within 50 metres of the
access road to the respondents’
premises. Between 22 August and 27 September 2012, various acts of
violence are alleged to
have occurred, resulting in damage to
property owned by the respondents and its employees.
[4]
On 23 May 2013, the
respondents issued summons against the appellants for damage to
property and the costs of security services.
The claims allegedly
constituted ‘riot damage’ as contemplated in s 11 of the
Gatherings Act. The appellants’
defence, in sum, was this. The
picket was one in furtherance of a protected strike, authorised in
terms of s 69 of the Labour Relations
Act, 66 of 1995 (the LRA). The
Gatherings Act does not apply and the claims, if any, are to be
adjudicated by the Labour Court.
In any event, s 67(2) of the
LRA confers upon the appellants immunity from civil claims of the
sort instituted.
[5]
The parties agreed that
the following legal questions be separately adjudicated by the high
court upon agreed facts, namely whether:
a)
The picket convened by
the first appellant constituted a gathering to which the provisions
of the Gatherings Act are applicable
at all, and, if so
b)
Whether the appellants
are entitled to claim immunity from the civils claims in terms of the
LRA?
[6]
The hearing on the
separated issues took place before Van Zyl J on 19 August 2015.
Judgment was delivered on 13 September 2019.
The high court
answered the first question in the affirmative. It made no order in
relation to the second question, holding that
it was a matter to be
determined by the trial court in due course. Leave to appeal to this
court was granted on 18 December 2019.
The provisions of the LRA
[7]
Chapter IV of the LRA
regulates and gives effect to the right to strike guaranteed by s
23(2) of the Constitution. It provides in
ss 64 to 66 for the types
of disputes in respect of which strike action may be called; the
procedures to be followed; and for secondary
strike action. Section
67, in its relevant part, provides that:
‘
(1)
In this Chapter, “protected strike” means a strike that
complies with the provisions of this Chapter and “protected
lock-out” means a lock-out that complies with the provisions of
this Chapter.
(2) A person does not commit a delict or a breach of contract by
taking part in –
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or a protected lock out.
(3) to (5) …
(6) Civil legal proceedings may not be instituted against any person
for –
(a) participating in a protected strike or protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected
strike or protected lock out.
(7) …
(8)
The provision of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out,
if that
act is an offence.’
[8]
Section 68, in its
relevant part, provides further that:
‘
(1)
In the case of any strike or lock-out, or any conduct in
contemplation or in furtherance of a strike or lock-out, that does
not comply with the provisions of this Chapter, the Labour Court has
exclusive jurisdiction –
(a) To grant an interdict or order to restrain –
(i) any person from participating in a strike or any conduct in
contemplation or in furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any
loss attributable to the strike or lock-out, or conduct, having
regard to –
(i) whether –
(
aa
) attempts were made to comply with the provisions of this
Chapter and the extent of those attempts;
(
bb
) the strike or lock-out or conduct was premeditated;
(
cc
) the strike or lock-out or conduct was in response to
unjustified conduct by another party to the dispute; and
(
dd
) there was compliance with an order granted in terms of
paragraph (a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out or conduct; and
(iv) the financial position of the employer, trade
union or employees respectively.
[9]
Section 69 deals with
picketing. The section underwent significant amendment in 2014 and
2019 in relation to the establishment of
picketing rules by agreement
between parties to a labour dispute or by the CCMA where no such
agreement can be achieved.
[1]
It is not necessary to deal with these provisions, which were
inapplicable when the events in issue here occurred. In its relevant
part, the section provides as follows.
‘
(1)
A registered trade union may authorise a picket by its members and
supporters for the purposes of peacefully demonstrating –
(
a
) in support of any protected strike; or
(
b
) in opposition to any lock-out.
(2) Despite any law regulating the right of assembly, a picket
authorised in terms of subsection (1) may be held –
(
a
) in any place to which the public has access but outside
the premises of an employer; or
(
b
) with the permission of the employer, inside the employer’s
premises.’
The provisions of the Gatherings Act
[10]
Section 17 of the
Constitution guarantees to everyone ‘the right, peacefully and
unarmed, to assemble, demonstrate, to picket
and to present
petitions’. The Gatherings Act
[2]
gives expression to this constitutionally guaranteed right. It does
so by providing a procedure for the convening of gatherings
and
demonstrations; the giving of notice of a gathering; requiring
consultations and negotiations to ensure that the conduct of
a
gathering proceeds peaceably and that the rights of all parties are
protected; and by providing for liability in certain circumstances.
[11]
For present purposes,
it is necessary to highlight certain defined terms which occur in the
Gatherings Act.
[12]
A ‘demonstration’
includes any ‘demonstration by one or more persons, but not
more than 15 persons, for or against
any person, cause, action or
failure to take action’. A ‘gathering’ means,
‘
any
assembly, concourse or procession of more than 15 persons in or on
any public road … or any public place or premises
wholly or
partly open to the air –
(a) at which the principles, policy, actions or failure to act of any
government, political party or political organization, whether
or not
that party or organization is registered in terms of any applicable
law, are discussed, attacked, criticized, promoted or
propagated; or
(b) held to form pressure groups, to hand over
petitions to any person, or to mobilize or demonstrate support for or
opposition
to the views, principles, policy, actions or omissions of
any person or body of persons or institution, including any
government,
administration or governmental institution.’
[13]
Chapter 1 deals with
procedures for the convening of gatherings. The procedure involves
the interaction of three key persons. Firstly,
an organisation or a
group of persons wishing to convene a gathering is required to
appoint a ‘convener’ and a deputy
whose responsibility it
is to give notice of the gathering and to represent the organisation
of group in its interaction with public
officials. Secondly, the
local authority, in whose area a gathering is to be held, is required
to appoint a ‘responsible
officer’ and a deputy whose
task it is to exercise the powers and discharge the duties of a
responsible officer as defined
by the Gatherings Act. Thirdly, the
Commissioner of the South African Police is required to appoint and
designate an ‘authorised
member’ of the South African
Police, whose task it is to represent the police in the course of any
consultations or negotiations
relating to the holding of a gathering
or its conduct.
[14]
Section 3 provides that
the convener of a gathering shall give written notice of the intended
gathering. Such notice is to be given
to the responsible officer of
the local authority concerned not later than seven days prior to the
holding of the gathering.
[15]
Subsection (3) sets out
the requirements for the giving of proper notice of a gathering. It
requires that:
'The notice referred to in subsection (1) shall contain at least the
following information:
(
a
) The name, address and telephone and facsimile numbers, if
any, of the convener and his deputy;
(
b
) the name of the organization or branch on whose behalf the
gathering is convened or, if it is not so convened, a statement that
it is convened by the convener;
(
c
) the purpose of the gathering;
(
d
) the time, duration and date of the gathering;
(
e
) the place where the gathering is to be held;
(
f
) the anticipated number of participants;
(
g
) the proposed number and, where possible, the names of the
marshals who will be appointed by the convener, and how the marshals
will be distinguished from the other participants in the gathering;
(
h
) in the case of a gathering in the form of a procession –
(i) the exact and complete route of the
procession;
(ii) the time when and the place at which
participants in the procession are to assemble, and the time when and
the place from which
the procession is to commence;
(iii) the time when and the place where the
procession is to end and the participants are to disperse;
(iv) the manner in which the participants will be
transported to the place of assembly and from the point of dispersal;
(v) the number and types of vehicles, if any,
which are to form part of the procession;
(
i
) if notice is given later than seven days before the date
on which the gathering is to be held, the reason why it was not given
timeously;
(
j
)
if a petition or other document is to be handed over to any person,
the place where and the person to whom it is to be handed
over.'
[16]
The rest of the chapter
deals with consultations and negotiations between the parties
involved; the imposition of conditions to
which the gathering may be
subject; judicial proceedings relating to such conditions, and the
prohibition of gatherings in certain
circumstances.
[17]
Chapter 4, which is
relevant to the present matter, deals with civil and criminal
liability which may arise from the convening of
a gathering. Section
11 provides that:
‘
(1)
If any riot damage occurs as a result of-
(
a
) a gathering, every organization on behalf of or under the
auspices of which that gathering was held, or, if not so held, the
convener;
(
b
) a demonstration, every person participating in such
demonstration,
shall, subject to subsection (2), be jointly and severally liable for
that riot damage as a joint wrongdoer contemplated in Chapter
II of
the Apportionment of Damages Act, 1956 (Act No. 34 of 1956),
together with any other person who unlawfully caused or
contributed
to such riot damage and any other organization or person who is
liable therefor in terms of this subsection.
(2) It shall be a defence to a claim against a person or organization
contemplated in subsection (1) if such person or organization
proves
–
(
a
) that he or it did not permit or connive at the act or
omission which caused the damage in question; and
(
b
) that the act or omission in question did not fall within
the scope of the objectives of the gathering or demonstration in
question
and was not reasonably foreseeable; and
(
c
) that he or it took all reasonable steps within his or its
power to prevent the act or omission in question: Provided that proof
that he or it forbade any act of the kind in question shall not by
itself be regarded as sufficient proof that he or it took all
reasonable steps to prevent the act in question.
(3) For the purposes of –
(
a
) recourse against, or contribution by, any person who, or
organization which, intentionally and unlawfully caused or
contributed
to the cause of any riot damage; or
(
b
) contribution by any person who, or organization which, is
jointly liable for any riot damage by virtue of the provisions of
subsection
(1),
any person or organization held liable for such damage by virtue of
the provisions of subsection (1) shall, notwithstanding the
said
provisions, be deemed to have been liable therefor in delict.
(4)
The provisions of this section shall not affect in any way the right,
under the common law or any other law, of a person or
body to recover
the full amount of damages arising from the negligence, intentional
act or omission, or delict of whatever nature
committed by or at the
behest of any other person.
[18]
The term ‘riot
damage’ is defined to mean ‘any loss suffered as a result
of any injury to or the death of any
person, or any damage to or
destruction of any property, caused directly or indirectly by, and
immediately before, during or after,
the holding of gathering’.
The findings of the high court
[19]
The high court found
that the provisions of the LRA and the Gatherings Act are
reconcilable and are not in conflict. It found that
the participants
in a protected strike and duly authorised picket would enjoy the
protection afforded by s 67(2) for so long as
they did not commit any
act amounting to an offence. In the event that they did, then
they would become liable to prosecution
and to payment of delictual
damages. In the event of a delictual claim, they would be entitled to
raise the defences provided by
s 11(2) of the Gatherings Act.
[20]
In coming to this
conclusion, the high court relied upon the judgment in
South
African Transport and Allied Workers Union v Garvas and Others
[2012] ZACC 13
;
2013 (1) SA 74
(CC) (
SATAWU
(CC)
) at para 56
where the majority held that:
‘
Section
11 (1) holds organisers of a gathering liable for riot damage subject
to section 11(2), which provides a limited defence
to a claim of this
kind. The effect of these specific provisions, in the context of the
Act as a whole, is to render holders of
a gathering organised with
peaceful intent liable for riot damage on a wider basis than is
provided for under the law of delict.
This is all the more so given
the extremely wide definition of riot damage in the Act.’
[21]
The high court found
that the Constitutional Court did not consider that the provisions of
s 11(1) of the Gatherings Act were irreconcilable
with the provisions
of the LRA.
[22]
The high court’s
reliance upon
SATAWU
(
CC
)
was misplaced. That matter is entirely distinguishable on the facts.
In that matter, the trade union had, in the context of a
protracted
strike in the transport industry, convened a march in terms of the
Gatherings Act. Notice of the intended procession
had been given in
terms of s 3 of the Gatherings Act; the route had been determined;
marshals were appointed; and the trade union
as convener had
participated in discussions with the responsible authority in the
local authority and the authorised member in
the Police Service.
[23]
On the day of the
procession extensive damage was caused to several small and other
businesses, allegedly by participants in the
procession. Some of the
persons affected thereby instituted action against the conveners of
the march in terms of s 11 of the Gatherings
Act. SATAWU pleaded,
inter alia, that the words ‘was not reasonably foreseeable’
in s 11(2)(
b)
of
the Gatherings Act limited the right to freedom of assembly and
rendered the section constitutionally invalid. This issue
was
determined against SATAWU by the high court. The Supreme Court of
Appeal in
South
African Transport and Allied Workers Union v Garvas and Others
[2011] ZASCA 152
;
2011 (6) SA 382
(SCA), dismissed the appeal. In the
Constitutional Court the issue which fell to be decided was whether s
11(2) of the Gatherings
Act unjustifiably limited the right of
assembly guaranteed by the Constitution. The Constitutional Court was
not concerned with
the interplay between the Gatherings Act and the
LRA, nor was it required to address the question whether there was a
conflict
between the two Acts. It was not dealing with the question
whether a claim arising from riot damage lay against the organisers
of a picket in the context of a protected strike.
[24]
The high court’s
finding that the provisions of the LRA and the Gatherings Act are not
in conflict was not premised upon an
analysis and interpretation of
the provisions of the respective Acts. Its reasoning proceeded on the
basis that the ‘immunity’
provided by ss 67(2) and 67(6)
must be read with s 67(8). This latter subsection provides that the
‘immunity’ does
not apply in the event the conduct
complained of, amounts to an offence. In such event the conduct would
fall outside of the ambit
of what is permitted by s 69 of the LRA. On
this basis, it was found that liability would arise under s 11 of the
Gatherings Act.
[25]
The high court did not
deal with s 68 of the LRA. Subsection (1)(
b
)
of that section, as recorded above, provides that the Labour Court
has exclusive jurisdiction to order the payment of just and
equitable
compensation for any loss attributable to conduct which does not
comply with the provisions of the LRA.
The contentions of the parties
[26]
Counsel for the
appellants argued that the high court had not only misconstrued the
effect of the arguments advanced before it regarding
the protection
afforded by s 67(2) of the LRA, it had erred in finding that the
provisions of the LRA and the Gatherings Act were
not in conflict.
[27]
It was submitted that
the appellants were not arguing for a blanket immunity from claims
such as those pursued by the respondents.
On the contrary, such
claims would be cognisable in proceedings before the Labour Court on
the basis of s 68(1)(
b
)
which provides for an award of just and equitable compensation. It
was argued that the LRA made provision for a specialised regime
to
cater for the exercise of the right to strike and to engage in
conduct in furtherance of such right. This includes the right
to
picket as a particular expression of the right of assembly. The LRA,
so it was submitted, regulated the exercise of this right
and
provided remedies for the unlawful exercise of such right. The
Gatherings Act, on the other hand, constitutes general legislation
which has as its purpose the regulation of the right of assembly
outside of the ambit of the exercise of that right in the context
of
strike action permitted by the LRA. Neither the definition of
‘gathering’ nor the procedural requirements for the
convening of a gathering find any application in the context of a
picket. In the circumstances s 11 does not apply in the event
that a
picket authorised in terms of the LRA gives rise to injury or damage
to property.
[28]
The respondents argued
that the LRA, properly construed, does not deal comprehensively with
circumstances such as those in the present
case. Liability under s 11
of the Gatherings Act does not depend upon non-compliance with the
procedural and other requirements
for the convening of a gathering.
Section 11 is a separate statutory provision which establishes
liability upon the convener or
organiser of a gathering in
circumstances where riot damage ensues. The definition of a
‘gathering’ is sufficiently
broad to encompass a picket
authorised in terms of the LRA. It was submitted that the remedy
provided by s 68(1)(
b
)
is limited and does not encompass the ordinary delictual remedies
available to an aggrieved party. On this basis it was submitted
that
s 11 provides an ‘additional’ or ‘separate’
remedy to those provided by the LRA.
The interpretation of the statutory provisions
[29]
The essential purpose
of the LRA is to give expression to the right of all employees to
fair labour practices; to regulate the employment
relationship in a
manner that balances the rights and interests of the parties thereto;
and to provide a purpose-built framework
for bargaining, negotiation
and dispute resolution.
[30]
It is apposite to
highlight what this court has held in relation to the purpose of the
LRA in
Motor
Industry Staff Association v Macun NO and Others
[2015] ZASCA 190
;
2016 (5) SA 76
(SCA) at paras 18 – 20:
‘
The
LRA was enacted, inter alia, to “change the law governing
labour relations”, to “give effect to section 23
of the
Constitution”, and to “promote and facilitate collective
bargaining at the work place and sectorial level”.
As noted by
Ngcobo J at paragraph 123 of
Chirwa
…, section 157(2) of the LRA, which deals with where the
Labour Court and the High Court have concurrent jurisdiction, has
to
be construed in the light of the primary objectives of the LRA. The
Constitutional Court has put it beyond doubt that the primary
objective of that Act was to establish a comprehensive legislative
framework regulating labour relations. An allied objective,
expressly
stated in the preamble to the LRA, was to “establish the Labour
Court and Labour Appeal Court as superior courts,
with exclusive
jurisdiction to
decide matters arising
from the [LRA]
”. …
In
Chirwa,
Ngcobo J indicated that in the light of what is set out above,
section 157(2) has to be narrowly construed and that it should be
confined to issues where a party relies directly on the provisions of
the Bill of Rights.
The
Constitutional Court, in
Gcaba
,
considered the tensions that might arise in relation to the
interpretation of section 157 of the LRA and related provisions. Van
der Westhuizen J noted the principle that “legislation must not
be interpreted to exclude or unduly limit remedies for the
enforcement of Constitutional rights” (para 55). Alongside
that, however, is the consideration that “the Constitution
recognises the need for specificity and specialisation in a modern
and complex society under the rule of law” (para 56).
The
following paragraph in
Gcaba
is
significant:
“
. . . Therefore, a wide range
of rights and the respective areas of law in which they apply are
explicitly recognised in the Constitution.
Different kinds of
relationships between citizens and the State and citizens amongst
each other are dealt with in different provisions.
The legislature is
sometimes specifically mandated to create detailed legislation for a
particular area, like equality, just administrative
action (PAJA) and
labour relations (LRA). Once a set of carefully crafted rules and
structures has been created for the effective
and speedy resolution
of disputes and protection of rights in a particular area of law, it
is preferable to use that particular
system. This was emphasised in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely tuned dispute-resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees.” (Footnotes omitted.)
The
approach to be followed, in summary, is as follows: The LRA is
Legislation envisaged by the Constitution. In construing the
provisions of the LRA, the two objectives referred to above must be
kept in mind. Section 157(2) of the LRA was enacted to extend
the
jurisdiction of the Labour Court to disputes concerning the alleged
violation of any right entrenched in the Bill of Rights
which arise
from employment and labour relations, rather than to restrict or
extend the jurisdiction of the high court. The Labour
Court and
Labour Appeal Court were designed as specialist courts that would be
steeped in workplace issues and be best able to
deal with complaints
relating to labour practices and collective bargaining. Put
differently, the Labour and Labour Appeal Courts
are best placed to
deal with matters arising out of the LRA.’
[31]
Insofar as the
interpretation of the provisions of the LRA and the Gatherings Act
are concerned, two things flow from these dicta.
The first concerns
the, by now well-established, approach to the interpretative exercise
set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA), which requires that the purpose of the
provisions and the context in which they occur guide a holistic
interpretation which gives effect to the operation of the legislation
concerned. The second aspect requires that where the legislature
provides specialised provisions to deal with a particular area of
legal relations, they are to be applied in preference to general
provisions which cover the same or similar relations (see
Sidumo
v Rustenburg Platinum Mines Ltd
[2007] ZACC 22
;
2008 (2) SA 24
(CC) at para 103).
[32]
As an adjunct to this
latter aspect is the principle, endorsed by this court in
Minister
of Justice and Constitutional Development and Others v Southern
African Litigation Centre (Helen Suzman Foundation and
Others as
Amici Curiae)
[2016] ZASCA 17
;
2016 (3) SA 317
(SCA) at para 102, that later
legislative enactments which manifestly intend to regulate the whole
subject matter are to be applied
within their own sphere of operation
to the exclusion of the earlier provisions. In this instance the LRA
constitutes the later
enactment.
[33]
Turning first to the
interpretative exercise. A ‘picket’ is not defined by the
LRA. In its ordinary meaning, however,
a ‘picket’
consists of a group of people who congregate or march outside a shop
or factory to protest about something
or to prevent other persons
from entering. The term ‘picket’ is used, more often than
not, in the context of strike
action to indicate a ‘barrier’
brought about by the strike action. Its purpose is to further the
objects of the strike
action by encouraging those employees who have
not joined the strike action to do so by withdrawing their labour. A
‘picket-line’
serves to discourage non-striking workers,
suppliers and customers from entering the work premises. Picketing
has been associated
with trade union organisation and worker strikes
since the earliest days of industrialisation. By its nature, a picket
serves to
broaden the impact that the withdrawal of labour of
striking workers has upon the employer. It does so by seeking to
disrupt operations
which would otherwise continue despite the strike.
[34]
A picket is,
accordingly, conduct to which employees may legitimately resort in
order to further the objects of strike action. It
is for this reason
that the LRA seeks to regulate the exercise of the right to picket
and to ensure that the interests of both
parties to the dispute are
balanced in the exercise of that right. This is now achieved by those
provisions of s 69 which require
the establishment of picketing
rules.
[35]
In order to lawfully
engage in a picket, the picket must be authorised by a registered
trade union in support of a protected strike.
Its purpose must be
peaceful and it must occur ‘outside the premises of the
employer’ or, with permission, inside the
premises of the
employer. As long as its purpose is peaceful and it is conducted
peacefully in support of or in furtherance of
a protected strike, the
trade union and the participants in the picket fall within the ambit
of the provisions of the LRA and enjoy
the protection afforded by ss
67(2) and (6) thereof.
[36]
Such protection is,
however, lost in the event that any act, constituting an offence, is
committed in furtherance of a strike. Conduct
which does not comply
with the provisions of the Chapter regulating strike action, renders
the party responsible for such conduct
liable, in terms of s 68(1),
to remedies which the Labour Court may impose.
[37]
Having regard to the
purpose of these provisions, read within their context, this must
mean that conduct committed during the course
of an otherwise
lawfully convened picket which constitutes an offence, renders the
person or persons or organisation responsible
for such conduct liable
to such orders as may be made pursuant to s 68 of the LRA.
[38]
Counsel for the
respondents conceded that the general provisions of the Gatherings
Act do not, and cannot, apply to a picket authorised
in terms of the
LRA. Thus it was accepted that the notice provision in s 3 of the
Gatherings Act can find no application to a picket;
nor do the
provisions which stipulate particular roles and responsibilities for
‘responsible authorities’ appointed
by a local authority
in whose area a picket is held. It is also not conceivable that a
picket can be prohibited in terms of s 5
of the Gatherings Act in the
light of the clear and unambiguous provisions of s 68(1)(
a
)
of the LRA.
[39]
Counsel argued however,
that the use of the phrase ‘despite any law regulating the
right of assembly’ in s 69(2) of
the LRA excludes only the
procedural requirements which otherwise apply to a gathering convened
in terms of the Gatherings Act.
The phrase, it was submitted,
suggests that a picket is nevertheless to be regarded as a gathering
within the broad definition
of that term in the Gatherings Act.
Counsel submitted that liability, in terms of s 11 of the Gatherings
Act, is not contingent
upon non-compliance with any of the provisions
of that Act. It arises upon the occurrence of riot damage as a result
of a gathering.
Thus, it was argued, s 11 provides a remedy whether
or not the gathering is one convened in terms of the Gatherings Act.
[40]
In developing the
argument counsel submitted that the remedy provided by s 68(1)(
b
)
of the LRA, is a statutory one which is limited in its scope. It is
therefore to be construed as a remedy provided in addition
to the
ordinary remedies available in delict or other statutory remedies for
conduct giving rise to damage.
[41]
The essential
difficulty with this proposition is that it requires a finding that a
picket, as a particular type of gathering or
demonstration, while not
otherwise regulated by the provisions of the Gatherings Act,
nevertheless falls within the ambit of s
11 for purposes of liability
for ‘riot damage’. This would require that s 11 be
abstracted from the Gatherings Act
and construed as a wholly separate
statutorily sanctioned cause of action available to a party suffering
damage consequent upon
a picket authorised in terms of the LRA. To
hold thus would require that this court ignores both the detailed
regulation of gatherings
in terms of the Gatherings Act and the
comprehensive regulation of conduct in furtherance of strike action
by the LRA. It would
also require that later legislative enactments
specifically designed to deal with pickets and picketing within the
context of a
labour dispute do not supersede earlier legislative
provisions enacted for a wholly different and more general purpose.
[42]
There is, in my view,
no basis for such a strained interpretation of the respective Acts.
Whilst a picket linguistically may fall
within the ambit of what
constitutes a gathering, it remains a particular form of organised
expression which is central to the
exercise of the right to strike.
The LRA recognises this by making detailed provision for the exercise
of that right. It does so
by providing for the establishment of
picketing rules and for a mechanism by which disputes relating to
such rules may be resolved.
It deals with picketing within the
context of protected strikes and lock-outs and specifically provides
for the consequences of
conduct which does not comply with the LRA.
[43]
The inclusion of the
phrase ‘despite any law regulating the right of assembly’
is one introduced
ex
abundanti cautela
to signify what the section already makes plain, namely, that the
convening of a picket is regulated by the provisions of the LRA.
Its
inclusion does not suggest that a picket is, for purposes other than
the organising thereof, to be regarded as a gathering
to which the
Gatherings Act applies. If that had been the intention, no doubt the
section would have stated as much.
[44]
The Gatherings Act is
general legislation which gives effect to the constitutional right of
assembly. It establishes a set of procedures
which have as their
purpose the balancing of the rights of parties affected by the
exercise of the right of assembly. It provides
protection for those
parties and, in circumstances where riot damage occurs, provides a
remedy as well as a set of defences. As
was noted by the
Constitutional Court in
SATAWU
(CC)
at para 38:
‘
Gatherings,
by their very nature, do not always lend themselves to easy
management. They call for extraordinary measures to curb
potential
harm. The approach adopted by Parliament appears to be that, except
in the limited circumstances defined, organisations
must live with
the consequences of their actions, with the result that harm
triggered by their decision to organise a gathering
would be placed
at their doorsteps. This appears to be the broad objective sought to
be achieved by Parliament through section
11. The common-law position
was well known when section 11 was enacted. The limitations of a
delictual claim for gatherings-related
damage in meeting the policy
objective gave rise to the need to enact section 11 to make adequate
provision for dealing with the
gatherings-related challenges of our
times.’
[45]
It is equally true that
the legislature was aware of the existence of the provisions of the
Gatherings Act when it enacted the LRA
and made specific provision
for the convening of pickets and for recourse in the event that a
picket or conduct in furtherance
of strike action gives rise to loss.
[46]
The LRA deals
comprehensively with the subject matter of picketing as a form of
demonstration in the context of strike action. Accordingly,
s 11 of
the Gatherings Act does not apply to claims for loss attributable to
conduct committed during the course of a picket authorised
in terms
of the LRA. It follows that the question reserved for determination
by the high court ought to have been answered in the
negative. In the
light of this it is unnecessary to consider the second question
relating to the availability of the defences provided
by s 67 of the
LRA.
[47]
Regrettably, it is
necessary to deal with the fact that Van Zyl J took four years to
deliver his judgment in this matter. The judgment
provides no
explanation for this extraordinary delay. We were informed by counsel
that whereas the underlying labour dispute had
long since been
resolved, the consequences, in the form of the civil litigation, are
self-evidently not. The prejudice caused by
a delay of four years in
determining an antecedent legal issue in the action, is manifest. How
it can have taken the judge four
years to decide this issue and to
deliver his judgment defies understanding. If there was a reasonable
explanation or excuse it
ought to have been set out in the judgment.
It is, after all, on the basis of the judgments delivered by judges
that they are held
accountable for the administration of justice
under their auspices.
[48]
The absence of any
explanation by the judge concerned suggests that there is none. A
four-year delay in the delivery of a judgment
constitutes an
unconscionable dereliction of duty on the part of the judge. It is a
matter which ought to enjoy the consideration
of the Judge President
of the Division concerned.
The
order
[49]
In the result I make
the following order:
1. The appeal is upheld with costs, including the costs
consequent upon the employment of two counsel.
2. The order of the high court is set aside and replaced
with the following order:
‘
1. An authorised picket in
terms of s 69(1) of the Labour Relations Act 66 of 1965 is not a
gathering to which s 11 of the Regulation
of Gatherings Act 205 of
1993 is applicable.
2. The plaintiffs are ordered to pay the costs of the
preparation and argument of the special case, such costs to include
those
consequent upon the employment of two counsel.'
________________________
G. GOOSEN
ACTING
JUDGE OF APPEAL
Appearances
For
appellants: M. Pillemer SC & P. Schumann
Instructed
by: Brett Purdon Attorneys, Durban.
Phatshoane
Henney Attorneys, Bloemfontein.
For
respondents: C. Watt-Pringle SC & A. Cook
Instructed
by: Farrell & Associates, Durban.
Rossouws,
Bloemfontein.
[1]
See the Labour Relations Amendment Acts 6 of 2014
and 8 of 2018. The latter introduced a number of provisions
regarding the powers
of the CCMA to determine picketing rules. Most
significant, it introduced subsection (6A) which provides that the
commissioner
conciliating a dispute must determine picketing rules
at the same time
as
issuing a certificate as contemplated by s 64 (1) (a), ie the
certificate that would entitle a trade union to embark upon strike
action.
[2]
The Gatherings Act was assented to on 14 January
1994 at a time when the Interim Constitution (Act 104 of 1993) made
provision
for the right of assembly. It came into operation on 15
November 1996, after the adoption of the Constitution 1996.