THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case N o: DA21 /23
In the matter between:
SHAVE AND GIBSON PACKAGING (PTY) LTD Appellant
and
AFRICAN MEAT INDUSTRY AND ALLIED TRADE UNION (AMITU) First Respondent
DISMISSED EMPLOYEES OF THE APPELLANT Second Respondent s
Heard: 13 November 2024
Delivered: 28 May 2025
Coram: Savage ADJP , Van Niekerk JA, Govindjee AJA
JUDGMENT
GOVINDJEE, AJA Background
2
[1] This appeal concerns events that occurred almost seven years ago. On 18
June 2018, members of the first respondent (AMITU) embarked on a protected strike
demanding a wage increase. The strike continued until 6 August 2018 and was
marred by acts of violence and intimidation. [2] The appellant (the company) approached both the Labour Court and the
CCMA on various occasions during the strike in an attempt to protect its rights. It
successfully applied for an interdict on 22 June 2018 (the order ). Pending the
finalisation of picketing rules by the Commission for Conciliation, Mediation and
Arbitration ( CCMA) , the relief obtained was wide- ranging. AMITU was ordered to
ensure that its striking members complied with the order and its officials and office
bearers were directed to make the contents of the order known. Those on strike were interdicted and restrained from harassing, intimidating and interfering with non-striking employees , and from unlawfully obstructing access and egress at the main
gate by disrupting traffic. The e mployees were also restrained from approaching or
being within 10 metres of the workplace. In addition, the employees were ordered ‘ to
comply with the draft Picketing Rules agreement in that the individual Respondents
must picket in the demarcated area as identified by the Applicant, pending the
outcome of the CCMA hearing on Picketing Rules ’.
[3] On 3 July 2018 the CCMA established picketing rules (the picketing rules), in
terms of s ection 69(5) of the Labour Relations Act ,
1 (LRA) as worded at the time,
and provided that ‘ [t]he picket will be held strictly in the area defined in the attached
map. At no time will the picketers obstruct any entrance to the Company’s plants .’2
Barring a few minor insertions, the draft picketing rules referred to in the order were
confirmed and t he area referred to as the appropriate place for picketing was the
same demarcated area. A number of employees nonetheless continued to picket in
their preferred area, rather than within the demarcated area.
[4] The position only changed a week later. On 10 July 2018, Lagrange J heard
an application to institute contempt proceedings on an urgent basis and issued a rule nisi, returnable on 7 August 2018, calling upon the respondents to show cause why
1 Act 66 of 1995, as amended.
2 S 69 of the Labour Relations Act, 1995 (Act 66 of 1995) (LRA) has been amended by the Labour
Relations Amendment Act, 2018 (Act 8 of 2018) with effect from 1 January 2019.
3
they should not be found guilty of contempt and punished for non- compliance with
the order (the rule nisi). Employees were now interdicted from conducting any
picketing activities within one kilometre of the company’s premises. As a result, the
picketing employees moved away from the space they had been occupying.3
[5] More than 160 employees were subsequently charged, found guilty and
dismissed for the following four forms of misconduct : participation in unprotected
industrial action which was not functional to collective bargaining in the form of
violence and intimidation, unreasonable demands and the protracted duration of the
industrial action; derivative misconduct;4 contempt of the order; intimidation,
harassment and threatening fellow employees by carrying sticks, knobkerries,
sjamboks and other weapons, also threatening and intimidating the appellant’s
customers and suppliers. The charge sheet included the following alternatives to the
charge of contempt:
‘Being … in breach of the picketing rules in that you did not remain in the
designated picketing area as provided in the picketing rules and that you are within the 10m perimeter area, further you were gathered at the gate of the
applicants’ premises interfering and hindering access and egress to Shave &
Gibson’s premises.’
The Labour Court decision
[6] Only 126 employees challenged the fairness of their dismissals before the
Labour Court. On the first charge, the court found that these employees were part of
the strike called by AMITU. The strike was protected and never lost that status, despite being marred by various instances of violence and intimidation linked to the strike. The company never approached the court for an order to interdict or suspend
3 The rule was discharged on 7 August 2018. Save for one employee, Mr Phumlani Mkhize, the
remaining employees were not held to be in contempt of court. The Labour Court made a ruling prior
to the commencement of the trial indicating that the company was nonetheless entitled to charge the
employees with misconduct pertaining to non- compliance with the order.
4 The basis of this charge was the failure of employees to provide details as to those involved in
various acts of misconduct, including: the stoning of a vehicle belonging to the appellant and the stoning of a Baker’s Transport vehicle; the firebombing of a vehicle belonging to the appellant on 29 June 2018 outside the company premises in Mobeni; the shooting at a vehicle belonging to the
appellant and driver of the vehicle on 24 July 2018 outside the same company premise.
4
the strike given the extent of violence and intimidation arising from it , and there was
no ultimatum. On the second charge, dismissal due to derivative misconduct was
rejected absent evidence of actual knowledge, on the part of the employees, of the identity of those responsible for the primary misconduct. The appellant had also failed to comply with its reciprocal duty to guarantee the safety of those employees who may have been able to provide the necessary information. Furthermore, the appellant had the means to obtain the information without burdening the employees, for example through the use of photographs. The Labour Court also held that there was no evidence that the employees were complicit in the various acts of misconduct
referred to in the charge.
[7] In respect of the contempt charge, the Labour Court held that its own order
was contradictory, so that the employees ought not to have been dismissed on this basis. Alternatively, the conduct of the employees was ‘ not that serious ’ absent a
‘code or regulation that pickets must be out of sight of non- strikers or in a place
where the picketers are not in a position to see who enters the workplace’, so that the sanction of dismissal was unjustified. In addition, the employees had
‘substantially complied with the order of 10 July in that there was consensus that
they moved to a field 700 metres away from the [company] premises ’.
[8] On the charge of intimidation, harassment and threatening behaviour, barring
two employees, the Labour Court held that there was no evidence to link the employees to any acts of intimidation, harassment or assault of specific individuals ,
or to the prevention of access or egress to the premises . The dismissal of those two
employees was found to be fair, as w as the dismissal of 16 individuals identified as
carrying weapons subsequent to the interdict, and contrary to the Code of Good Practice on Picketing which was applicable at the time.
5
[9] It must be noted that these 18 employees formed part of a group of 90
employees who were actually identified , mainly by way of photographs, during the
course of the picket.
6 The other 72 members of that group, together with 36
5 Code of Good Practice on Picketing (GN 765 of 15 May 1998), repealed by GNR.279 published
under GG 442260 of 1 March 2019.
6 It may be that the actual number was 17, the name ‘Blessing Mkhize’ appearing twice in the order of
the Labour Court.
5
employees who could not be identified as having committed any misconduct during
the strike , were reinstated with effect from 14 June 2019.7
The appeal
[10] There is no dispute that the case of the 18 employees found by the Labour
Court to have been fairly dismissed for misconduct fall s outside the scope of this
appeal. The appeal is directed at the Court’s finding that the dismissal of the
remaining 108 employees (the 72 remaining ‘identified’ employees on list ‘ SG 4’ and
the 36 ‘unidentified’ employees on list ‘SG 2’) was substantively unfair. Two grounds
of appeal were pursued and require consideration. Firstly, i t is argued that the
Labour Court erred in drawing an arbitrary distinction between individuals who were armed before and after the order. Secondly, the company contends that on the
evidence, the dismissal of all 126 employees was substantively fair because they persistently contravened the picketing rules by picketing outside the demarcated area. This calls into question the correctness of the Labour Court’s findings that the
terms of the order were contradictory, that the employees had not committed an act
of misconduct by continuing to picket outside of the designated area and that, even if
they had, dismissal was too harsh a sanction in the circumstances.
Breach of the demarcated area
The demarcated area [11] In terms of the recognition agreement concluded between the company and
AMITU during 2017, picketing was prohibited ‘ within ten metres from the entire front
façade of all premises occupied by the company’ .
8 The front façade of the
company’s premises on South Coast Road was only slightly more than ten metres from this road, and ran parallel to the road. As a result, strict adherence to the terms of the recognition agreement would effectively have precluded any picketing in the
7 The Labour Court decision has been reported as African Meat Industry and Allied Trade Union
(AMITU) and Others v Shave and Gibson Packaging (Pty) Ltd [2023] ZALCD 17; [2024] 1 BLLR 54
(LC); (2024) 45 ILJ 79 (LC).
8 On the meaning of the term ‘picket’, see National Union of Metal Workers of South Africa and Others
v Dunlop Mixing and Technical Services (Pty) Ltd and Others (Dunlop ) [2020] ZASCA 161; [2021] 3
BLLR 221 (SCA); (2021) 42 ILJ 475 (SCA); 2021 (4) SA 144 (SCA) para 33.
6
area between South Coast Road and the company premises . This accorded with the
company’s original intention. When t he parties were unable to reach agreement on
picketing rules prior to the commencement of the strike, the company proposed a
rectangular space between the front façade and South Coas t Road, approximately
150 metres from a boom situated at the only entrance to be used during the strike,
as its preferred location for the picket (the demarcated area).9 The location of the
demarcated area was both a deviation from the recognition agreement and a
concession on the part of the company, given that it was almost entirely within ten
metres from the company’s front façade. D raft picketing rules made reference to this
area and this information was posted on company notice boards and reiterated by senior company personnel on the morning the strike commenced. The demarcated area was known to AMITU and the employees who participated in the strike. It was
marked and cordoned off with red tape prior to the commencement of the strike, before being removed by those employees who were determined to picket closer to
the entrance to the company’s premises .
Unidentified employees
[12] The company argued that even those employees who were unidentified
during the picket were fairly dismissed . This was on the basis that each of the 126
employees before the Labour Court had participated in the strike. Indeed, in its
judgment, the Labour Court recorded a concession to this effect, a finding not
challenged on appeal. But it does not necessarily follow that participat ion in the strike
equated to a breach of the picketing rules or amounted to contempt of the order.
There is a fundamental distinction to be drawn between those employees identified
as having picketed outside of the demarcated area, namely those employees listed
in SG 4, and those not so identified ( and listed in SG 2). Bearing in mind that the
strike remained a protected strike , the argument that employees not identified by the
company as having acted in breach of the picketing rules should be treated similarly to those who were specifically identified is untenable. This is tantamount to
dismissing the employees listed in SG 2 purely for their participation in a protected
9 In terms of measurements accepted by the Labour Court, the demarcated area was 10,68m x
37,81m, and was in the area between the company’s front façade and South Coast Road,
approximately 150 metres from a boom situated at the only entrance used by the company during the
strike.
7
strike.10 Absent any evidence that these employees actually picketed outside the
demarcated area, or a proper basis for drawing an inference to that effect , they could
not have been guilty of contravening the order by assimilation .11 The evidence that
these employees were ‘ part of the process ’ and associated themselves with that
unruliness, which spoke to their ‘ attitude ’, is wholly insufficient.
[13] Any misconduct on the part of those identified as having breached the
picketing rules cannot simply be attributed to those employees who were not so
identified. The refusal or failure to remain in the designated picketing area extended over a period of days after the granting of the order, and the company clearly had the
means to record the acts of individual employees and identify them. In the absence
of the identification of those employees listed in SG 2, their dismissal s cannot be
sustained. The Labour Court’s finding that the dismissal of the employees listed in
SG 2 was substantively unfair must accordingly be upheld. There is no reason to
interfere with t he Labour Court ’s reasoning in ordering the reinstatement of the
unidentified employees listed in SG 2, on the terms that it was granted.
Identified employees
[14] The real issue in dispute pertains to the employees whose names appear on
SG 4, those employees who , after the order was granted, were identified during
picket ing but not proven to have commit ted misconduct in the form of carrying
weapons, intimidation, harassment or assault. In effect, the company seeks to justify their dismissals on the basis of their non- adherence to the order and the picketing
rules , which both stipulated the demarcated area as the appropriate place for
picketing. For convenience, the reference to ‘the employees’ in the paragraphs that
follow refers to this group.
10 See Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley
Estates (Pty) Ltd and Another [2022] ZACC 7 ; [2022] 6 BLLR 487 (CC); 2022 (7) BCLR 787 (CC);
2022 (5) SA 18 (CC) at para 42.
11 National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and
Technical Services (Pty) Limited and Others [2019] ZACC 25 ; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ
1957 (CC); [2019] 9 BLLR 865 (CC); 2019 (5) SA 354 (CC) at para 81. Also see the discussion in B
Ramji, S Sibiya and H Ramji ‘ Tracing the historical development of employers’ legal remedies against
strike action: Derivative misconduct, interdicts and dismissal by common purpose’ CCR (2024) (vol
14) 20 7 at 22 3 and following .
8
[15] It was AMITU’s prerogative to authorise a picket by its members for purposes
of peaceful demonstration in support of the protected strike.12 The LRA provides that
an authorised picket may be held, even without the permission of the employer, in
any place to which the public has access but outside the premises of an employer.13
Despite the engagement between the parties prior to the commencement of the
strike, no formal agreement regarding picketing rules was reached by them . As such,
the employees were free to picket in their preferred area outside the company’s
premises.
[16] The position changed after the company approached the Labour Court and
obtained the order. As described above, i n addition to regulating the conduct of the
employees , the order restrained the employees from approaching or being within 10
metres of the workplace, and restricted picketing to the demarcated area until a
commissioner established picketing rules .14 In effect, the company’s insistence as to
the appropriate place for picketing now received the Labour Court’s imprimatur.
[17] The evidence supports the conclusion that the employees were fully aware of
the location of the demarcated area. This much is evident from the interactions
between the company and AMITU prior to the commencement of the strike, including the manner in which the space was cordoned off with tape prior to this being
removed by the employees . According to Mr Downes, the company’s chairman,
fresh tape used to cordon off the area again was also removed, and the employees
continued to occupy the space they preferred. The employees neither misinterpreted
the order n or mistook the location of the demarcated area and t he decision not to
remain in that space was considered and deliberate . This is evident from the
interaction between Messrs Mkhwanazi, AMITU ’s general secretary , and Staats, the
company’s group financial director, at the time the order was served.
15 When Staats
12 Section 69(1)( a) of the LRA.
13 Section 69(2) of the LRA.
14 See para 2, above. Ab sent agreement on picketing rules following the intervention of the CCMA,
the CCMA ‘ must establish picketing rules ’: s 69(4) and s 69(5) prior to amendment by the Labour
Relations Amendment Act, No. 8 of 2018 (Government Gazette 42061 dated 27 November 2018) ,
with effect from 1 January 2019.
15 Various attempts were made to communicate the contents of the order to the employees. The
employees were individually advised, by bulk short message service (SMS), that ‘ the judge ruled that
AMITU can only stand in the demarcated area’. Mkhwanazi also read the contents of the order to the
employees, and the order was served by the sheriff on 25 June 2018. The return of service reflects
that AMITU’s shop stewards refused to listen to the sheriff and carried on singing.
9
made the point that the order had referenced the demarcated area, and that
employees would be in contempt, Mkhwanazi’s response was as follows:
‘I’m not agreeing with that. That is why I’m saying that you can proceed with
the contempt, we will defend. We reserve our rights … Proceed with your
legality, but I’m going to, as I say to you, we reserve our right to defend.’
[18] Video footage captured their interaction. Mkhwanazi repeated his willingness
to stand in contempt of the order more than once. He maintained that the employees
were ‘ in dispute’ about the demarcation area, so that he had effect ively advised the
employees to ignore the demarcated area on the understanding that they would nevertheless be in compliance with the order. As another witness called on behalf of AMITU testified, the outcome was that the employees simply continued to occupy
the space that they were in, without moving to the demarcated area, despite the proper service of the order and the clear implications of its content .
[19] Interpretation is the process of attributing meaning to the words used in the
order having regard to the context provided by reading the contested provision in the
light of the document as a whole and the circumstances attendant upon its coming
into existence. Consideration must be given to the language used in the order in the light of the ordinary rules of grammar and syntax; the context in which the provision appear s; the apparent purpose to which it is directed and material known to those
responsible for its production. Where more than one meaning is possible, each possibility must be weighed objectively in the light of all these factors . A sensible
meaning, as opposed to one that is unbusinesslike or undermines the apparent purpose of the document, is to be preferred.
[20] Properly construed, the order was unequivocal and peremptory . The Labour
Court restricted its focus to the language used, erroneously ignoring the evidence
regarding the circumstances that resulted in the granting of the order and the
importance of the demarcated area to the company . It also ignored the manner in
which AMITU had contrived to feign confusion regarding the location of the
demarcated area, when in fact this had always been readily apparent. Considering the purpose of the provision in context, the order clearly required picketing to be
10
restricted to the demarcated area pending the CCMA ’s determination of picketing
rules. That the order also restricted the employees from approaching or being within
10 metres of the workplace could not negate th e location of the demarcated area.
There was no contradiction between these provisions and t he Labour Court’s
approach resulted in the negation of its own earlier order pertaining to the
appropriate place for picketing. This was unjustified. In addition, after the picketing
rules were established by the CCMA on 3 July 2018, there could be no basis
whatsoever for the employees to continue to ignore the existence and location of the
demarcated area. The Labour Court erred in its failure to appreciate the importance
of this development .
[21] The consequence is that the company succeeded in proving the existence of
a workplace rule pertaining to the place for picketing,
16 one that the company had
consistently sought to enforce through its approaches to the Labour Court and
CCMA. From the time the order was served, the employees contravened that rule by
picketing at the entrance boom and in the space between the boom and the
demarcated area, instead of restricting the picket to the demarcated area as ordered.
The rule was reasonable and, considering the evidence, particularly the various
ways in which the contents of the order was communicated, the employees were
aware, or could reasonably be expected to have been aware of the rule. There is no
suggestion to the contrary, or that the rule was applied inconsistently. In any event, the importance of complying with a court order , also in a workplace context, is so
well established and widely known that it would be superfluous to require further
forms of communication. In effect, the employees acted insubordinately in continuing
to picket where they did and the company succeeded in proving its alternative
charge to contempt of court. There is no merit to the suggestions that the rule was ‘in
dispute’, that the court had been misled in granting the order, or that there had been
due compliance with the order . The demarcated area was contravened without
justification . The remaining question is whether dismissal was an appropriate
sanction.
16 Cf Panorama Park Retirement Village v Commission for Conciliation, Mediation and Arbitration and
Others (2020) 41 ILJ 1200 (LC) at para 32, holding that it is only the court that could pronounce on
whether there was contempt of its orders or not, and that an order cannot ‘ automatically morph into a
workplace rule for the purposes of a charge of insubordination’. Also see , in general, Lencoane and
Others v Vector Logistics (Pty) Ltd (JS 958/09) [2010] ZALC 149 (20 October 2010) .
11
Was dismissal an appropriate sanction for breach of the designated area?
[22] In the circumstances, it is open to this court to draw its own conclusion as to
whether dismissal was appropriate for the proven misconduct.
17 Determining a fair
sanction entails a value judgment following consideration of all relevant factors .18
The importance of the rule and flagrancy of the breach are indicators of the gravity of the misconduct . In addition, the employees’ circumstances (including length of
service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself are relevant.
19 The factors are
open- ended and may, for example, include remorse shown by employees for non -
compliance with the rules.20 The totality of the circumstances must be taken into
account.21
[23] The point of departure is that the designated area in which picketing was to be
conducted was a serious matter for the company, so much so that it approached the Labour Court , which duly restricted picketing to the demarcated area in peremptory
terms . Mkhwanazi read the order to the employees on the afternoon of 22 June 2018
and the order was duly communicated and served. Thereafter, as explained above,
there could have been no confusion as to the obligation t o picket only in the
designated area. After 3 July 2018, when picketing rules were agreed at the CCMA, there could equally have been no doubt that picketing was to take place only within the designated area. In picketing as they did, t he employees’ conduct amounted to
17 Transport and Allied Workers Union of South Africa obo MW Ngedle and 93 Others v Unitrans Fuel
and Chemical (Pty) Limited [2016] ZACC 28; 2016 (11) BCLR 1440 (CC); [2016] 11 BLLR 1059 (CC);
(2016) 37 ILJ 2485 at para 195 .
18 See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12
BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (Sidumo )
at para 79: relevant factors to be considered include the importance of the rule that had been
breached; the reason the employer imposed the sanction of dismissal; the basis of the employees’
challenge to the dismissal; the harm caused by the employees’ conduct; whether additional training
and instruction may result in the employee not repeating the misconduct; the effect of dismissal on the employees and their long -service record . Such considerations have been labelled as ‘objective
extras’: see R Le Roux and A Adam ‘The many shades of intolerability in the workplace’ (2024) 141
SALJ 323 at 336. Also see J Grogan Dismissal (4
th Ed) (2022) 181: the choice of sanction is not a
matter of logic or law and there are situations in which adjudicators may reasonably disagree that
dismissal was appropriate.
19 Item 3(5) of the Code.
20 See Grogan above n 18 at 241.
21 Sidumo above n 18 at para 78.
12
both a breach of the order and , after 3 July 201 8, the breach of picketing rules
determined by the CCMA.
[24] The rule of law, a founding value of the Constitution, requires that the dignity
and authority of the courts (and in the case of labour disputes, the CCMA and bargaining councils clothed with the jurisdiction to arbitrate disputes) be maintained, as must their capacity to carry out their functions. Any act of misconduct that constitutes a breach of a court order or a determination made by the CCMA must necessarily be viewed in that context.
[25] This is not to suggest that every breach of a picketing rule established or
confirmed by court order or the CCMA will necessarily warrant dismissal. Various
circumstances may render dismissal inappropriate. For example, employees may
picket marginally outside the prescribed area, even for an extended period of time, or
picket well outside the place prescribed but only for a short period of time. Each case
must be determined on its own facts.
[26] The employees have all been treated as first offenders for purposes of
determining the appropriate sanction and it has been assumed in their favour that
there is little risk of a repeat occurrence should they be reinstated. It is also to the
employees’ advantage, when considering the context, that the misconduct occurred
during the course of picketing in furtherance of a protected strike.
22 Trade union
members enjoy the right to participate in the lawful activities of the trade union, subject to the union’s constitution and, as the judgment of my colleague Savage ADJP rightly emphasises, everyone has the right, peacefully and unarmed, to
assemble, to demonstrate and to picket.
23 As the Supreme Court of Appeal has
explained, a picket, by its nature, serves to broaden the impact that the withdrawal of
labour of striking workers has upon the employer by seeking to disrupt operations
which would otherwise continue despite the strike.24
22 See DM Davis and NM Arendse ‘Picketing’ (1988) 9 ILJ 26. Also see Ramji et al above n 11 at 235
on the ‘reconstruction of the striking worker’.
23 Section 17 of the Constitution.
24 Dunlop above n 8 para 33. Also see Pepsi -Cola Canada Beverages (West) Ltd v Retail, Wholesale
and Department Store Union, Local 558, Burkart and Reiber personally and as representatives of all
members of Retail, Wholesale and Department Store Union Local 558 (2002) 90 CRR (2d) 189 at
paras 26 and 27, indexed as RWDSU, Local 558 v Pepsi -Cola Canada Beverages (West) Ltd as cited
13
[27] Such sentiments cannot undermine the importance of employees’ compliance
with reasonable workplace rules or the dictates of courts and tribunals such as the
CCMA. While trade unions are at liberty to select their own tactics, including the adoption of a confrontational stance, unions and their members are not permitted to act unlawfully when striving towards the desired end.
25 When dismissal is the result,
courts are obliged to scrutinise the circumstances surrounding the exercise of these rights , particularly when it is alleged that there has been significant harm to the
employer, fellow employees or to the public.
26
[28] In the present circumstances, it is accepted that the employees were guilty of
serious misconduct due to their wilful failure to obey the order and, later, the
picketing rules in respect of the place for picketing.
27 Obedience to court orders are a
foundational feature of a state based on the rule of law so that failure to comply with
the order is accepted as having constituted an aggravating feature of the
misconduct .28 The breach was not of a technical nature or one that could be
described as minimal or inconsequential. The evidence reveals that this was neither
a case of employees standing marginally outside the prescribed area for an
extensive period of time, nor was it a gross violation of the prescri bed place for
picketing for only a short period. Instead, considering the duration of the violation
together with its spatial extent , the misconduct must be assessed as being both
flagrant and protracted.
[29] The order, in so far as the place for picketing was concerned, was
disregarded without justification and this violation continued day after day for more
than a week in a manner that was tantamount to gross insubordination. The
misconduct was made more egregious by the fact that the employees failed to alter
in Growthpoint Properties Ltd v SA Commercial Catering and Allied Workers Union and others (2010)
31 ILJ 2539 (KZD) at para 48.
25 National Union of Public Service and Allied Workers on behalf of Mani and Others v National
Lotteries Board 2014 (35) ILJ 1885 (CC) (Mani ) at para 194. Also see SATAWU v Garvas and Others
2012 (33) ILJ 1593 (CC) ( Garvas ) at para 26: the right to protest, picket and assemble is directly
linked to it being exercised peacefully.
26 Impala Platinum Ltd v Jansen and others [2017] 4 BLLR 325 (LAC) at para 17.
27 See the minority judgment of Dambuza AJ in Mani above n 25 at paras 213, 214.
28 Modise and others v Steve’s Spar Blackheath [2000] ZALAC 1; 2001 (2) SA 406 (LAC) at paras
119, 120. Also see Pheko and others v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015
(6) BCLR 711 (CC) at paras 28 and 30.
14
their stance for a further week after the establishment of picketing rules by the
CCMA on 3 July 2018. As indicated, the picketing rules imposed by the CCMA
reflect ed that the picket must be held ‘ strictly in the area defined in the attached
map’ .29 The CCMA ruling included the picketing rules as an annexure. Attached
thereto was a single, separate, page clearly depict ing and highlighting the
demarcated area in relation to the company’s premises and South Coast Road.
[30] Borrowing from cases involving gross insubordination, the gravity of the
offence is apparent when considering factors such as the prior steps taken by the company to ensure that picketing occurred within the demarcated area, the reasonableness of the company’s attempts to ensure strict adherence thereto, and the wilfulness of the employees’ sustained defiance.
30 Considered in context , the
employees’ conduct led to a breakdown in the trust relationship, as confirmed by the company’s witnesses. As Staats put it :
‘Well, these are not people that we can, that we can trust again, that we can have in the factory, that we can afford to have around our machinery and so the breakdown of our relationship, the breakdown of the process, the elongated nature of the process, the fact that they were so far off side - off
site, just made this whole process facile towards the end.’
[31] It may be added that t he employees showed no remorse for their misconduct.
Even when called to place a version before the chair of the disciplinary enquiry, a respected senior CCMA commissioner, AMITU elected to disrupt the proceedings
and maintained a confrontational attitude. None of the employees sought to explain
their circumstances to the company or to explain why they had persistently stood well outside the demarcated area, often near the company’s only entrance,
alongside colleagues who carried weapons and created an intimidating and hostile
environment. One of the results of the breach of the designated area was that the
employees, including those carrying weapons, placed themselves day after day in close proximity to the only entrance to the company that remained open. The evidence of Mr Downes confirmed what followed :
29 Own emphasis.
30 Mani above n 25 at para 214.
15
‘…I witnessed that they continued to rush up to every vehicle [that
approached the entrance], up to the boom, which was then broken, and they would rush up and charge up and they would try and intimidate them, and then march back and then rush up again and then re- gather. That’s what
happened during the day … despite the court order.’
[32] In the circumstances, the company cannot be criticised for attempting to deter
misconduct of the kind that was proved, as part of a sensible operational response to risk management.
31 Having regard to all of the relevant factors, including the
examples cited in the Code of Good Practice: Dismissal as warranting dismissal for a
first offence, the misconduct perpetrated was sufficiently serious to warrant the
penalty of dismissal . The Labour Court‘s finding that their dismissal was
substantively unfair stands to be set aside.32 Given this outcome, i t is unnecessary
for present purposes to determine whether the company had also succeeded in proving a fair dismissal based on contempt of court.
Reinstatement of the unidentified employees
[33] Finally, i t cannot escape notice that the strike leading to the present
proceedings commenced on 18 June 2018. The Labour Court’s judgment was
delivered on 17 October 2023, the trial having commenced more than a year previously. More than a year has elapsed since leave to appeal was granted so that
it is difficult not to experience a sense of unease as to the ramifications of reinstating
the unidentified employees for the company. In Billiton Aluminium SA Ltd t/a Hillside
Aluminium v Khanyile and Others , Froneman J expressed the views of the
Constitutional Court in respect of the effect of systemic delay on remedies, as follows:
33
31 See Le Roux and Adam above n 18 at 334– 335; A van Niekerk ‘Dismissal for misconduct – Ghosts
of justice past, present and future’ in R le Roux and A Rycroft (eds) Reinventing Labour Law (2012)
102 at 117.
32 It may be added that 18 of these individuals were reinstated by the Labour Court despite admittedly
carrying weapons prior to the date of the order. Considering the Code of Good Practice on Picketing
applicable at the time, there was no basis for differentiating between employees who carried weapons
after the order, and those who had done so before. This is a further basis for upholding the appeal in respect of these 18 employees.
33 Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and others (2010) 31 ILJ 273 (CC) at
para 51.
16
‘Any appeal process carries its own risk. In Performing Arts Council of the
Transvaal v Paper Printing Wood and Allied Workers Union and Others ,34
Goldstein JA stated, in relation to the previous Labour Relations Act,35 that:
“Whether or not reinstatement is the appropriate relief, in my opinion, must be
judged as at the time the matter came before the industrial court. If at that
time it was appropriate, it would be unjust and illogical to allow delays caused
by unsuccessful appeals to the Labour Appeal Court and to this Court to
render reinstatement inappropriate. Where an order for reinstatement has been granted by the industrial court, an employer who appeals from such an
order knowingly runs the risk of any prejudice which may be the consequence
of delaying the implementation of the order.”
[34] This court is constitutionally empowered to make any order that is just and
equitable in the circumstances, including the power to confirm, amend or set aside the judgment or order that is the subject of the appeal.
36 The Labour Court reduced
the effect of its order of reinstatement by a period of nine months, given the delay in prosecuting the matter, and also did not award costs in favour of AMITU or the
employees . There is no basis for interfering with those decisi ons in respect of the
employees to be reinstated. Fairness demands that there be no order of costs in
respect of this appeal.
[35] Consequently, t he following order is made:
Order
1. The appeal is upheld to the extent set out below.
2. The order of the court a quo is set aside and replaced with the
following order:
‘(a) The dismissal of each of the 90 applicants whose names appear on
annexure SG 4 was substantively and procedurally fair.
34 1994 (2) SA 204 (A) at 219H –I.
35 28 of 1956.
36 Section 174 of the LRA read with s 172 of the Constitution.
17
b) The dismissal of each of the 36 applicants who are listed in annexure
SG 2 was substantively unfair.
c) The respondent is ordered to reinstate each of the 36 applicants listed
in annexure SG 2 in its employ on terms and conditions of employment not
less favourable than the terms and conditions that governed their employment at the date of dismissal.
d) The order of reinstatement will operate with retrospective effect to 14
June 2019.
e) There is no order as to costs.’
3. No order is made as to costs of the appeal.
Govindjee AJA
Van Niekerk JA concurs.
SAVAGE ADJP
[36] I have had the benefit of reading the judgment of my colleague, Govindjee
AJA, with which I agree in part , save for the order made in respect of the 90
employees whose names appear on annexure SG 4 (the SG4 employees) . In
relation to the SG 4 employees, I would dismiss the appeal but vary the order of the
Labour Court to order their reinstatement retrospective to 14 June 2019 with a final
written warning valid for 12 months for the breach of the picketing rules.
[37] The SG4 employees were dismissed for contempt of the order of the Labour
Court on 22 June 2018 and the breach of picketing rules. There is no dispute that the
SG4 employees moved outside of the picket area demarcated in the court order and
picketing rules .
[38] Although t he SG4 employees were dismissed for contempt of court as well as
a breach of the picketing rules, it bears noting that no application was made t o the
Labour Court to have the employees found to have been in contempt of that Court
order . While f raming the misconduct as “contempt” is unfortunate, this Court has
repeatedly emphasised that it is the substance of the alleged misconduct whic h must
18
be determined and not the name given to it . There is no dispute on the facts that the
SG4 employees did not remain within the confines of the demarcated picketing area.
I am satisfied that by so doing they committed misconduct . Importantly, however, no
acts of violence or intimidation in the course of the picket was attributed to them.
[39] The right to picket is given constitutional protection. Section 17 of the Bill of
Rights provides that “(e) veryone has the right the right, peacefully and unarmed, to
assemble, to demonstrate, to picket and to present petitions ”. This is echoed in
section 69 of the Labour Relation s Act,37 which allows employees to picket in
support of a strike.
[40] In South African Transport and Allied Workers Union and others v Garvas and
others38 it was recognised that:
‘The right to freedom of assembly is central to our constitutional democracy. It
exists primarily to give a voice to the powerless. This includes groups that do
not have political or economic power, and other vulnerable persons. It
provides an outlet for their frustrations. This right will, in many cases, be the
only mechanism available to them to express their legitimate concerns.
Indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms. The right to picket must be exercised peacefully .’
39
[41] The court noted that:
‘Freedom of assembly is no doubt a very important right in any democratic
society. Its exercise may not, therefore, be limited without good reason. The purpose sought to be achieved through the limitation must be sufficiently important to warrant the limitation. ’
40
37 Act 66 of 1995.
38 2013 (1) SA 83 (CC) at para 61.
39 Garvas above n 25 at par a 53.
40 Garvas above n 25 at para 66.
19
[42] The collective bargaining process reflects, often starkly, the different interests
of the employer and employees, with the exercise of the constitutionally protected
right to strike used by employees to exert pressure on the employer, usually in relation to collective workplace demands. A strike picket aims to encourage non-
striking employees, and even members of the public, to support strikers and to put pressure on the employer to meet strike demands. The demarcation of the picket line is therefore often not simply a mechanical task but can reflect the deeply different
needs and interests of the parties. The facts of this appeal indicate as much in that
despite the demarcation of the picketing area by order of the court and the picketing rules, the trade union continued to ma ke it clear that it was dissatisfied with the ambit
of the picketing area, although it did not seek a variation of the court order.
[43] In Garvas the European Court of Human Rights decision of Ziliberberg v
Moldova41 was cited with approval, in which it was made clear that:
‘[A]n individual does not cease to enjoy the right to peaceful assembly as a
result of sporadic violence or other punishable acts committed by others in the
course of the demonstration, if the individual in question remains peaceful in
his or her own intentions or behaviour. ’42
[44] Determining whether a dismissal was fair or not involves a value judgment
reached following a consideration of all relevant factors.
43 The mere breach of a
picket line cannot in my mind warrant dismissal without more, for if this were to be so a one- metre breach of the line would justify termination of employment. I accept that
the strike was marred by incidents of violence and intimidation but this did not have the effect that the striking SG4 employees were not permitted peacefully in the
exercise of their constitutionally -protected right either to strike or to picket.
[45] The unlawful conduct of other strikers is not to colour a determination as to
the fairness of the dismissal of SG 4 employees. T he breach of the picket line by
41 ECHR (Application No 61821/00) (4 May 2004) at para 2.
42 Garvas above n 25 at para 53. Ziliberberg v Moldova E CHR (Application No 61821/00) (4 May
2004) at para 2. See also Cisse v France ECHR (Application No 51346/99) (9 April 2002) at para 50
and Christians Against Racism and Fascism v United Kingdom (1980) 21 DR 138 (Application No
8440/78) at para 4.
43 Sidumo above n 18 para 79.
20
SG 4 employees occurred within the context of an extended and difficult strike, and
in circumstances in which there had been a clear dispute about the location of the
picket line, with no violence or intimidation proved on the part of SG 4 employees .
[46] I am unable to agree that the breach of the picket line by SG4 employees was
conduct of such gravity, magnitude and seriousness that it justified the imposition of
dismissal as the ultimate and most severe of workplace penalties on the first
occasion. I am also not satisfied that the conduct of the SG4 employees was shown
to have led to a breakdown in the trust relationship with the appellant . The evidence
of Staats to the contrary fails , in my mind, to reflect an appreciation of the inevitable
strain that a protracted strike places on workplace relationships or the capacity for
such relationships to improve over time following the conclusion of a strike. The fact
that the SG4 employees showed no remorse for their misconduct for standing
outside of the demarcated area near to the only entrance to the company that
remained open, also does not lead me to a conclusion that this warranted their
dismissal .
[47] The principle of progressive discipline seeks t o ensure a structured and
gradu ated approach to employee misconduct , granting an employee the opportunity
to improve their conduct or performance through imposing less severe corrective
actions , escalat ing these as necessary. The Code of Good Practice44 recognises
that dismissal for a first offence is reserved for cases in which the misconduct committed is serious and of such gravity that it makes continued employment
intolerable. Having regard to all relevant considerations, I agree with the Labour
Court that the dismissal of SG 4 employees was not fair. I find no reason not to
reinstate such employees with retrospective effect subject to the imposition of a final
written warning when their continued employment is neither intolerable nor am I
satisfied that their dismissal was “a sensible operational response to risk
management” .
45
[48] For these reasons, in relation to the SG 4 employees , I would dismiss the
appeal but vary the order of the Labour Court to reinstatement of the employees
44 Item 3(4).
45 De Beers Consolidated Mines Ltd v CCMA and Others [2000] 9 BLLR 995 (LAC) at para 22.
21
retrospectively to 14 June 2019, but with a final written warning valid for 12 months
for the breach of the picketing rules.
Savage ADJP
APPEARANCES:
FOR THE APPELLANT : Adv A Myburgh SC
(Heads of argument prepared by J Dickson SC ) Instructed by Farrell Inc
FOR THE RESPONDENT: Adv MN Xulu
Instructed by M Dlamini Attorneys