COURT ONLINE COVER PAGE
IN THE LABOUR COURT OF SOUTH
AFRICA HELD AT CAPE TOWN
CASE NO: 2025-061014
In the matter between:
Boomerang Fruits (Pty) Ltd Plaintiff / Applicant
and
uMkhonto weSiswe,Employees Listed
In Annexure A Defendant / Respondent
____________________________________________________________________
JUDGMENT
NOTE: This document was filed electronically by the Registrar on 16/7/2025
at 2:50:57 PM South African Standard Time (SAST). The time and date
the document was filed by the party is presented on the header of each
page of this document.
ELECTRONICALLY SIGNED BY:
Registrar of The Labour Court,
Cape TownREGISTRAR OF THE LABOUR COURT OF
SOUTH AFRICA
VLAEBERG
Pl'ivate-Bag X1 5502, Vlae-~g 8018
REGISTRAR OF THE LABOUR COURT OF
SOUTH AFRICA
VLAEBERG
Report able
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
CASE NO: 2025 -061014
In the matter between:
BOOMERANG FRUITS (PTY) LTD Applicant
and
UMKHONTO WESIZWE 1st Respondent
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION 2ND and Further Respondents
Heard: 30 May 2025 and 20 June 2025
Delivered: 16 July 2025
Summary: (Unprotected strike action – final interdict – interim rule partly
confirmed – Political party acting in representative capacity – actions not merely
advisory – Party not instigating strike but supporting strike by participating in
demonstration b y strikers, representing strikers in mediation of strike demands,
objecting to employer representation, insulting management representative,
issuing media vilifying the employer during the strike publicly condemning – final
order justified in absence of evidence that demands of strikers resolved – order
against political party modified in absence of evidence it instigated strike –
Costs – both sets of respondents equally responsible for postponement of
hearing on retu rn day – attorney for individual respondents failing to confirm
authority to appear and withdrawing, warranting consideration of punitive cost
award – political party partially liable for remaining costs of application
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JUDGMENT
LAGRANGE, J
Introduction
[1] This application is to confirm an urgent rule nisi issued on 7 May 2025. The
salient part of the interim order read:
“1. Condonation is granted to the Applicant for non -
compliance with the forms, service and time
periods prescribed in terms of the Rules of the
Labour Court, that same be dispensed with, and
that this application be heard and finalised as an
urgent application as contemplated in Rule 35, as
read with Rule 38 of the Rules of the Labour
Court.
2. Condonation is granted to the Applican t for non -
compliance with Section 68(2) of the LRA, if
necessary, and that bringing this application in a
shorter period be permitted, insofar as it may be
deemed necessary.
3. A rule nisi is issued calling upon the Respondents
to appear and show cause on 30 May 2025 why a
final Order should not be granted on the same
terms as those set out in paragraph 4 below; and
4. Pending the return date, paragraphs 4.1 to 4.5
below, shall oper ate as an interim Order with
immediate effect:
4.1 An order declaring that the strike action by
the Second to Further Respondents is
unprotected and unlawful, as contemplated
in Section 64(1)(a) read with Section 68(1
of the LRA.
4.2 Interdicting the First Respon dent from
encouraging, participating in, or promoting
the unprotected strike in any manner
whatsoever.
4.3 Interdicting and Restraining the Second to
Further Respondents from e ncouraging,
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3
participating in, or promoting the
unprotected strike.
4.4 Interdicting and restraining the First and
Second to Further Respondents from
engaging in any actions of threats and
intimidation of fellow employees and
management of Boomerang and interfering
with the Applicant's business operations in
any manner.
5. Any party affected here by may anticipate the
return date on 48 hours' notice to all other parties.
6. The costs of the application are reserved for
determination on return date.”
[2] The first respondent (‘MKP’ or ‘the party’) opposed the interim relief and
opposes the confirmation of paragraphs 4.2 and 4.4 of the rule and any
award of costs. The second and further respondents (“the individual
respondents”) did not oppose the interim relief but on the first return day on
30 May 2025, a number of them and an attorney , Mr G de Bruyn, of Gordon
de Bruyn Attorneys, who claimed to represent them, appear ed in court to
resist an order of final relief being made .
[3] However, the matter could not proceed because De Bruyn Attorneys had
not yet been able to take proper instructions from their clients and was not
in a position to file answering affidavits. Secondly, the first respondents only
filed their supplementary answering affidavit the previous day , leaving
insufficient time for the applicant (‘ Boomerang ’) to respond . Accordingly , the
matter was postponed by agreement until 20 June 2025, with costs being
reserved.
[4] The individual respondents were required to serve any answering affidavits
by 9 June 2025 but did not do so. A couple of days later , De Bruyn attorney s
filed a notice of withdrawal . The applicant advised that it would still seek a
cost award against the attorney and their clients, given the fact that they
were granted a postponement in order to file answering affidavits .
[5] Consequently , when the postponed hearing resumed o n 20 June 2025, the
individual respondents were not represented. F urther, n one of the individual
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respondents were in attendance either. Accordingly, the only affidavits
before the court where those filed by Boomerang and MKP.
Brief chronology
[6] Boomerang is an agricultural business engaged in growing, packing and
exporting deciduous fruit in Elgin. All the pertinent events transpired in April
and May 2025. MKP is a registered political party.
[7] On Friday 25 A pril 202 5, Boomerang fail ed to pay 3 hours overtime to
approximately 35 packhouse staff at the correct hourly rate . The incorrect
payments involved were between R 120 to R 176 per person. This problem
came to management’s attention around 17h00 and the pac khouse
manager addressed staff on the staff bus advised them it would be rectified.
[8] Nevertheless , the following day, Saturday 26 April 2025, no employees
came to work, and Boomerang received information that some staff had
prevented the arranged transport from collecting workers for work. There
was also a picket held by some employees in Elgin.
[9] A manager , Mr S Ganya ( Ganya ’), spoke to some of the picketers to try and
ascertain why they were not at work . He was informed by one of the
employees , Ms N Nmbanjwata, that they were “striking for the MKP union ”
due to the unpaid wages. Ganya was also given the contact details of Mr A
Gana (‘ Gana ’), whom MKP described in the answering affidavit as its ‘local
community representative ’ and elsewhere as a local councillor .
[10] The party claimed several employees had approached Gana on 25 April
complaining about Boomerang ’s failure to promptly resolve their wage
issues and about inhumane treatment. He advised them to “ follow the
relevant procedures including approach ing the police ”, as that was the
customary way of addressing withheld salaries in that area. Gana claims
the police contacted certain unnamed representative s of Boomerang , who
refused to attend a meeting to resolve the matter, and this prompted
employees to refuse to report for work the following day.
[11] However, Boomerang denies the police contacted any member of
Boomerang ’s management about any complaint over unpaid wages and
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5
stated that involving the police was not the normal method of resolving such
issues in the area. It also argued it was highly improbable that the police
would even have attempted on Friday evening to set up a meeting.
[12] MKP claimed to have tried to calm employees down and de -escalate the
matter, e ven advising them to return to work, but to no avail. MKP denies
organising the picket and claimed it merely engaged in an advisory role. On
Sunday , 27 April, Ganya alleges that Gana contacted spoke to him and
advised him that MKP ’s labour desk was represe nting the employees. MKP
admits that Gana spoke to Ganya explaining that the workers had several
matters they wanted to address. MKP does not state in what capacity Gana
“reached out” to Ganya . Nonetheless, it stated that its labour desk “…was
established to serve the local community and provide them with guidance.
Many of the community members are subject to unbearable working
conditions and do not have access to legal representation. However the
MKP’s labour desk is not a trade union and does [not] purport to be a
registered trade union .” Boomerang claimed it was unable to access to staff
at that stage , which it attributed to MKP’s activity, but the latter denies
preventing Boomerang from engaging with its employees.
[13] Boomerang claimed tha t Gana was insisting on a meeting with MKP
because it was representing the employees, but it was advised by a local
Democratic Alliance representative against attending such a meeting ,
because MKP is a political party , which was not supposed to be involved in
employment related issues. Gana denies he insisted on a meeting with
management . Nevertheless, it is common cause that Boomerang agreed to
meet with MKP and up to ten employees at a hotel the following day.
Boomerang claims it did so to try and resolve matters as soon as possible,
despite being contrary to the advice it was given .
[14] Boomerang closed the packing facility on 28 April, after it was informed that
some staff have been told to disembark from transport to work that day. That
morn ing senior management had ascertained what the overtime payment
problem was and, believing it to have been a relatively minor pay
discrepancy, surmised that there was more underlying the employees’
actions, in which it suspected MKP was playing a role. MKP said it had
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received a list of grievances from employees which included wage issues,
but denies it had any interest in pursuing its own agenda.
[15] After workers failed to report for work, Boomerang then decided to follow
the previous advice it had been give n and cancel led the meeting that was
to have taken place at the hotel that morning. It informed Gana around
09h10 that it had decided to cancel the meeting after obtaining legal advice.
This allegation is specifically admitted by MKP even though elsewhere in
the answering affidavit it claims Gana was only informed of the cancellation
after the meeting was due to begin.
[16] In any event, Boomerang acknowledge d the cancellation of the meeting led
to a chaotic situation developing . Taxis arrived at the hotel venu e and staff
commenced picketing at the farm stall adjacent to the hotel. Traffic on the
N2 national highway was disrupted and the police were called and became
involved. Police then escorted a conv oy of picketers to Boomerang ’s
premises , which were closed owing to its earlier decision to close the
packing facility. Packing staff and MKP staff or members comprising a group
of about 40 people gathered at the farm gates. More taxis arrived with MKP
members and other employees raising the siz e of the gathering to around
100 persons. Western Cape Policing Forum (‘the police forum’) members
and SAPS public order policing service members were also in attendance.
After advice from the policing forum members, Boomerang agreed to meet
with MKP membe rs and employees who were picketing. None of these
events are contested .
[17] When management and the police forum representatives approached the
gathering , Boomerang alleges that allegations were shouted by MKP
members who were trying to incite the crowd. One slogan called for the farm
to be burnt. The policing forum members managed to take control of the
situation and then employees gave a handwritten letter of demand s to
management. Boomerang characterises these as largely work -related
complaints which it bel ieved could be resolved. MKP does not dispute this
account of events. The handwritten list submitted appeared to be a mixture
of grievances and proposals or demands . Amongst the discernible concerns
raised in the handwritten list were overtime, holidays, change in working
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hours, permanent employment status, use of insulting language, clocking
issues, a dismissal complaint and dress code. The examples of alleged
insulting language use, though clearly demeaning, were not of an overtly
racist character.
[18] It is common cause that Strachan undertook to resolve the short payments
by the following day. Gana claims that workers were not satisfied because
they had other issues to discuss, whereas Strachan asserts that it was
agreed Boomerang would meet MKP at the police station the following day
for mediation to resolve the outstanding issues.
[19] Later in the day, Boomerang issued a further notice to employees, which
was conveyed to them via WhatsApp requiring them to attend work on 29
April, advisin g also that transport would be provided for them. The same day
a post appeared on MKP social media stating that Boomerang workers were
on strike over abuse and exploitation, claiming that workers were forced to
drink from toilets, pay for their own transpo rt, work without being paid
overtime and being subjected to racial abuse and racism.
[20] On Tuesday, 29 April 2025 , some staff were allegedly at the transport pickup
points but declined to get on the transport when it arrived and none of them
reported for duty . Boomerang estimated it would suffer approximately R 1.5
million in losses due to not being able to fulfil an order due that day. MKP
baldly denies these claims. It is true that management’s evidence of what
transpired at the pickup points might have been hearsay, but MKP does not
claim employees did return to work that day.
[21] The same day the mediation session took place at SAPS offices, chaired by
Dr. D Williams , the chairperson of the Western Cape Police Forum
(‘WCPF’). At least four MKP representatives, including Gana and Ms L
Gibisela (‘ Gibisela ’), attend ed. MKP states that Gibisela is part of its labour
desk and that no more than eight labour desk members were involved in the
mediation . Boomerang ’s management team was accompanied by its legal
representa tive. A police colonel and another member of the WCPF were
present.
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[22] Boomerang alleged that MKP representatives objected to the presence of
Boomerang’s legal representative, demanding that the representative left
the meeting or, alternatively, that the me eting be postponed for MKP to
obtain legal representation. Boomerang claimed the MKP representatives
said they were from its labour desk and that they were a union . MKP denies
they claimed to be a union .
[23] MKP baldly denies Boomerang ’s account of the meeting and that its
representatives portrayed MKP as a union . It alleges its representatives
attended solely in an advisory capacity. Beyond this, it did not give its own
account of what transpired in the meeting. MKP also asserted that Gana
was acting as a ‘community leader ’ and not as an MKP representative.
[24] While disputing that its representatives had asked Boomerang ’s legal
representative to leave the meeting, it agreed that the legal representative
did leave the meeting and that an MK P official from head office joined the
meeting. It did concede that it had insulted Ganya labelling him as an illegal
immigrant with a f alse ID and requested he should also leave the meeting.
It also agrees that Gana placed the original list of handwritten demands on
the table proposing that they settle three of the important issues, two of
which concerned the pay queries and an issue of a tractor driv er paying for
alleged malicious damage to a vehicle.
[25] Boomerang alleged its representative said they were wi lling to address all
the issues on the handwritten list and discussion began on the first two
issues, with MKP representatives speaking and preventing management
from attempting to address issues. MKP denies being obstructive and also
denies that two Xhos a management staff were threatened by Gibisela . It
further disputes that the representatives made claims without substantiating
them or that the meeting went around in circles , as alleged by Boomerang .
In addition, it denies claiming that the police colone l, who was present at the
mediation had a security firm which MKP said it could ‘overpower’ at any
time. Without providing any specifics and despite conceding the insult
levelled at Ganya , MKP maintains everyone present conducted the meeting
cordially ,
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[26] Boomerang state d that it was a senior MKP member from Paarl who brought
the meeting to a close allegedly because it was not dealing with the
grievances, even though Mr J Strachan (‘Strachan’) the managing director
stated he made an undertaking in the meeti ng to resolve the listed issues
and that structures would be established to improve the handling of staff
queries as well as establishing a workplace forum. He undertook that a task
team would be set up to deal with the grievances and demands. Beyond a
bald denial of the truth of any of these statements, MKP did not put up a
version of how the meeting progressed, save to state that it ended because
Boomerang did not want to address the employees ’ concerns. Boomerang
retorted that MKP representatives raise further issues not mentioned in the
handwritten list of the employees. These additional allegations were
mentioned by MKP in social media posts set out below.
[27] MKP did not dispute Strachan’s allegation that MKP representatives took a
few of the employees t o lay criminal charges against management, which
later transpired to be charges of crimen iniuria .
[28] On the same day the mediation took place , the party issued a press
statement under the heading “MK TO LAY RACIST CHARGE AGAINST
FARM OWNER ” (sic). The media statement invited all members of the
media to attend at the Grabouw police station at 12h00 ”where charges of
racism, assault, abuse and exploitation will be laid on behalf of the
Boomerang fruit farm workers” (emphasis added). It further stated t hat the
MK party would accompany the workers to engage and lay charges against
their racist employer at 10h00 by agreement with the police and that workers
would air their grievances in a neutral place and charges. The media
statement indicated that enqui ries should be directed to Mr N Ndhlela,
MKP’s national spokesperson, or Gibisela who was identified as a “ Workers’
Representative ”. A longer press release the same day made it clear that it
would be laying the charge on behalf of the Boomerang workers.
[29] In addition, MKP issued another media statement calling for an audit of
labour and working conditions on farms in the Western Cape. The statement
referred to the alleged inhumane treatment and racial abuse of workers by
Boomerang and asserted that Strachan a nd his “racist counterparts” had
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committed gross human rights violations against farmworkers. Apart from
relating a number of alleged infractions of basic conditions of employment,
the document alleged, amongst other things, that workers were beaten up
and subject to deeply offensive racial slurs, including being referred to as
‘kaffirs’ , which had not been mentioned in the strikers’ list of grievances.
[30] Following the mediation session , the company issued a notice to striking
employees, noting that the business had been closed due to strike action
on Monday and Tuesday and called on all employees to return to work the
next day. Another notice was issued informing that the overtime short
payments had been rectified and that Boomerang undertook to implement
a more effective payment system.
[31] On Wednesday, 30 May, farm and packing staff still did not report for duty
and at that stage Boomerang decided to approach this court for urgent relief.
It also notified employees that it was locking them out owing to the
continuing strike. The same day , Gana sent a WhatsApp message to
Boomerang , which read:
“Good day,
Guided by the resolution of our previous meeting we have
scheduled a follow -up meeting fo r tomorrow, Thursday, 1
May 2024 at 10:00 at the Grabouw Police Station. The
aim is to reach meaningful resolutions that will enable all
workers to return to work on Friday, 2 May 2025.
The mediator, David Williams, has been informed of this
notice and has been requested to liaise with you (the
employer) to confirm your attendance.
Thank you.
Regards,
Cllr Ace”
[32] MKP portrayed this notice as a request for a follow up mediation session
which Boomerang refused to agree to.
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Evaluation
Existence of a clear ri ght
[33] There is no dispute that the individual employees embarked on an
unprotected strike as there was no attempt at any stage to comply with the
necessary procedures set out in section 64 [1] [a] in the Labour Relations
Act, 66 of 1995 (‘the LRA’). All the instructions to return to work went
unheeded before the in terim interdict was issued. Boomerang also gave
ample notice of the interdict application. The employer was entitled to obtain
the interim order bringing the unprotected strike to an end.
[34] The centra l issues to decide are whether the interim relief granted against
the individual respondents should be confirmed and if it should include MKP
and its members.
Confirmation of the rule
[35] On the return day it was common course that the strike action had been
halted, and a group of the striking employees had been dismissed. There is
no evidence to suggest that the substantive issues which gave rise to the
strike have been resolved, except perhaps the underpayment of overtime.
[36] In Centlec (Soc) Ltd v SA Municipal Workers Union & Others1, the Labour
Court had to consider whether to confirm an interim order that a strike was
unprotected, prohibiting the continuation of the strike and interdicting acts
of intimidation. The employer abandoned the relief concerning the
continuation of the strike as the strike action had been discontinued. The
court reasoned that there could be no acts of intimidation which would arise
in the absence of strike action continuing , so declined to confirm that
prohi bition2. The court considered that the strike had been a stop -start affair
and had dire consequences for the supply of electricity if it continued. It
noted that there was no undertaking that strike action would not take place
as long as the employees’ dem ands remained unresolved. The court
concluded:
1 (2019) 40 ILJ 846 (LC)
2 At paragraph 10.
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“[19] It also cannot be in the interests of justice and the proper
functioning of this court for parties such as the applicant to
constantly approach the court simply to interdict sporadic
industrial actions, and as and when they take place. In this
case, the mere fact that the employees had voluntarily ceased
the unprotected industrial action is cold comfort for the
applicant, as in the light of the live controversy, there is no
guarantee that they may not repeat the conduct in question . In
my view, the apprehension of harm, prejudice or threat of
prejudice in this case is not hypothetical or imagined. It has
been demonstrated as real, and entitles the applicant to the
relief that it seeks.”
(emphasis added)
[37] In this matter , there was no pattern of sporadic strike action, but there is
no reason to believe that employees are content with the outcome of the
strike, bearing in mind that they did not resume work after the employer
undertook to rectify the overtime underpayment, apparently because they
had other unresolved grievances. Despite initial indications they might
oppose final relief the court has no knowledge what the current attitude of
the individual respondents is, in the absence of them filing any answ ering
affidavit or making representations. Objectively speaking, there is nothing
to show the outstanding issues were ever resolved and no r is there
evidence of any undertakings made by the employees who returned to
work about the status of their grievance s. Accordingly, there is a prospect
that discontented employees and supporters might encourage or promote
a resumption of the strike over the unresolved demands. There is also no
reasonable alternative remedy available to Boomerang to prevent the
resumptio n of such activity other than to confirm the interim order.
[38] In the circumstances, there is no reason not to confirm the unprotected
status of the strike and to prohibit any further promotion of it by the individual
respondents and recourse to threatening tactics, such as the arson threat
that was made .
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Relief relating to MKP
[39] The interim relief obtained against the party, which Boomerang wants
confirmed is to prevent it paying an active role in furtherance or support of
the presently dormant unprotected strike. It also seeks a cost order against
it.
[40] MKP opposes a final order on the basis that it should never have been
joined in the matter as it did not play any role in the strike action, except that
of an advisor to t he striking employees and attempted facilitator of a
mediate d solution. It argues it has no substantial interest in the matter.
[41] There is a smattering of cases where political parties or non-union
organisations have become embroiled in labour disputes3. In Calgan
Lounge the Economic Freedom Fighters party (‘EFF’) had organised
protests and made demands on behalf of striking employees. The court
found the EFF had been directly involved in, if not the instigators, in the
unprotected strike action and had made no attempt to ensure compliance
with the LRA . The court roundly condemned the party assuming a role
reserved for trade unions under the LRA , and ordered costs against it .4 In
Langplaas the EFF had taken up the concerns of striking workers and
entered int o the labour dispute . The court commented on this in the following
terms:
“‘[17] I accept from the founding affidavit that the unprotected
strike action was accompanied by unlawful and violent conduct,
which was exacerbated by the involvement of other ro le
players, including members of the surrounding communities
and the [political party] in particular. Inasmuch as the
employees were appreciative of the [political party’s] role in
highlighting their concerns, it is my view that it had ultimately
3 See, e.g. CCI SA (Pty) Ltd v African National Congress Youth League & others (2024) 45 ILJ
969 (LAC) , Economic Freedom Fighters v Brightstone Trading 3 CC t/a Gordon Road Spar &
others (2023) 44 ILJ 2679 (LAC) , Langplaas Boerdery CC and Others v Matshini and Others
(2021) 42 ILJ 1210 (LC) (20 November 2020) and Calgan Lounge v EFF and Others [2019] 40
ILJ 342 (LC)
4 Calgan at paragraphs 2 and 40 to 44.
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entered i nto a labour dispute, when it clearly had no business to
do so .
[18] Being a political party, and to the extent that the EFF
was of the view that it needed to assist the farmworkers, its
role, in the light of the Employees being not unionised, ought to
have been limited to an advisory one . This could have included
referring the Employees to the DOLE, or (given the nature of
the other grievances raised i.e. allegations of racism, and being
compelled to attend church services) to the relevant Chapter 9
Institutions such as the South African Human Rights
Commission and the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic
Communities.
[19] By however entering the arena, and actively
participating in and/or instigating the strike and the
accompanying violent conduct, the EFF made itself party to a
labour dispute which it had no business with . By further
advising the applicants through their attorneys of record that it
would defend this application and further seek a punitive costs
order against the applicants, the EFF became party to this
litigation, when it should have had a limited advisory role in the
dispute between the Employees and the applicants. To this
end, the mere fact that it was submitted by counsel that the
EFF only became involved by invitation of the Employees, or
that it did not oppose this application in its name cannot in my
view be sufficient to absolve it from the costs, as it had become
a party by proxy. ”
(emphasis added)
[42] The Labour Appeal Court cited and endorsed this approach in the CCI
judgment:
“[21] … It is well settled that the involvement of a political
party in labour matters is limited to an advisory one only ,
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because they are not trade unions. In Langplaas Boerdery
CC & others v Matshini & others (Langplaas Boerdery) ,
one of the cases relied on by the appellant, the Labour
Court ordered a political party to pay the costs of an
application for an interdict for t heir involvement in an
unprotected strike.”
(emphasis added)
[43] In Brightstone , an EFF branch official had demanded a meeting with
management of a store concerning the demotion of an employee. When the
employer did not agree LAC a meeting, he arrived at the employer’s
premises and demanded the revocation of the demotion. When
management failed to comply with the demand, protest action ensued
outside the store. The employer interdicted the action and the court ordered
costs against EFF on the basis that the of ficial and protesters
misrepresented that their action was authorised by the EFF. On appeal, the
LAC held that the test for demonstrating the party had authorised the
conduct relying on the doctrine of ostensible authority had not been satisfied
and dismi ssed the order against the EFF.5 In CCI, the ANC Youth League
had issued a leaflet, Facebook posts and a voice note listing various
workplace demands and calling for the shutdown of the employer’s
business. The employer obtained an interdict prohibiting th e league’s
interference with its business. A planned march did not ensue. Later the
league obtained permission from the municipality under the Regulation of
Gatherings Act , 2025 of 1993 (‘the RGA’), to march to the employer’s
premises. Similar media was i ssued as before. On this occasion, the Labour
Court declined to interdict the march because it did not have jurisdiction as
the march did not amount to a strike or protest action under the LRA, nor
action in furtherance of either activity. The judgment was upheld on appeal
on the same jurisdictional ground. The LAC found that:
“[26]… This is a situation where the appellant had no
labour relationship with the respondents, the march was
5 Brightstone at paragraph 40.
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sanctioned by the municipality in terms of the RGA
(whether under false p retences or not) and none of its
employees approached a political party for help nor did
they agree to obstruct or retard the productivity of their
work. The fact that the reason for the protest was almost
exclusively about labour issues at the appellant d oes not
automatically make it into a matter governed by the LRA .
In terms of s 17 of the Constitution, any person can
protest about perceived violations of labour rights, so long
as it is done lawfully in terms of the RGA. Where it is
employees and their u nion doing so, they must do so in
terms of the LRA; if it is other members of the public like
political parties, to the exclusion of employees, they can
do so in terms of the RGA .”
(emphasis added)
[44] Unlike Brightstone, the court i n this matter i s dealing w ith an unprotected
strike which was underway and whether MKP’s activities amounted to
conduct in contemplation of or furtherance of the strike.
[45] From the papers, it is evident that MKP was involved with the immediate
dispute which triggered the strike from its inception. On its own account it
was contacted by employees on Friday, 25 April, when the overtime
underpayment grievance originated. On its version it got police to contact
Boomerang late that afternoon or early that evening , but Boomerang denied
receiving any communication from the police that day.
[46] Even if the police did not take any action that Friday, the response of the
only named striking employee in the papers , Nmbanjwata, on Saturday,
showed that she believed MKP was already playing a role in the strike action
which began on 26 April . While that might be dismissed as uncorroborated
hearsay evidence, for the purpose of proving that the party was already
playing a role in the strike, it is not disputed that Ganya was given Gana ’s
contact deta ils by one of the employees when the strike had commenced
on Saturday. It was Gana who initiated contact with Ganya the next day. It
was claimed that Gana was acting in his capacity as an MKP councillor .
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However, in MKP’s supplementary affidavit, it stated that
“The members of the Labour Desk, including Lidna Gibisele and Mr Gana,
were acting as mediators, not instigators” (emphasis added). Gana denies
he demanded to meet with management, but it is clear he took the initiative
to approach Ganya and the meeting would not have been provisionally
scheduled otherwise. It is not eworthy that there is no evidence the striking
employees took any initiative of their own , independently of MKP , to request
a meeting .
[47] The original agreement was that Boomerang would meet a delegation
comprising MKP members and employees. While MKP denies that Gana
portrayed it was acting in the capacity of a union under the auspices of its
labour desk, there is no evidence that MKP explained t o management that
it was merely playing an advisory role , as it claims in its affidavits .
[48] At the picket outside the farm on Monday, MKP representatives were
gathered with the employees. Management met with MKP representatives
and employees. This is the only meeting that there was evidence of
employees playing a direct role in the interactions with management,
namely when their handwritten list of grievances was handed to
management.
[49] Gana was part of the group protesting outside the farm gate, and it was not
denied that MKP members were vocal in shouting allegations when the
management delegati on arrived at the gate and that one slogan uttered
encouraged that the farm should be burned . The only reasonable inference
to draw is that MKP participated in the protest gathering with striking
employees , which was part of the employees’ strike activit ies.
[50] The same day , MKP issued a statement on social media, publicising
employee’s motives for engaging strike action and mentioning issues not
raised in the workers ’ handwritten demands, such as workers being forced
to drink toilet water and racism. MKP’s d issemination of this statement on
social media is difficult to reconcile with MKP’s alleged role as mere advisor .
Notably, none of the briefings mention whether the strike was protected or
not. Why MKP needed to issue this public statement if its role was simply
advisory is not explained.
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[51] In passing, I note MKP did not advise the strikers that some of their
disputes might be resolved using the enforcement remedies in the Basic
Conditions of Employment Act, 75 of 1996 or the Employment Equity Act
55 of 199 8, or by ending the unprotected strike and following the correct
procedures for pursuing collective bargaining demands in s 64 of the LRA
in respect of those matters which require collective bargaining. It is
reasonable to suppose that an organisation whi ch sets up a labour desk
would be familiar with the dispute resolution channels available and would
promote the use of those mechanisms.
[52] Looking at what transpired in the mediation at the police station , there was
no evidence that any of the employees pre sent spoke on their own behalf.
While acknowledging that Boomerang ’s legal representative did leave the
mediation meeting, t he party baldly denies that its delegates requested the
representative ’s recusal or the postponement of the meeting so that it could
obtain its own legal representation. However, on the papers , it is difficult to
discern a plausible alternative explanation for the representative leaving , if
the representative’s presence had not been raised as a stumbling block to
the meeting proceedin g. MKP offers no explanation why the representative
would have left . MKP’s bald denial that it made the recusal request is
inherently implausible. Challenging who may attend the mediation on
Boomerang ’s behalf is conduct which does not chime well with the role of a
self-styled advisor to the striking employees. It is the type of tactical
manoeuvre more typically associated with one of the protagonists in a
dispute, seeking to eliminate a perceived advantage its adversary might
enjoy while conducting a nego tiation.
[53] MKP baldly denies that it assumed the role of a representative of the
employees in the meeting. It asserts it did not represent itself as a trade
union but fails to deal directly with Boomerang ’s allegation that management
representatives made it clear that the labour desk was not a registered union
and it was only prepared to meet with the MKP delegation as
representatives of the strikers in the interest of finding a solution. It is
noteworthy that MKP offers scant detail of its own version of wha t transpired
at the meeting, preferring to rely on sweeping denials of the entire content
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of detailed averments set out in the founding affidavit. For the court
assessing the evidence, this raises the question whether serious disputes
of fact have been ra ised by MKP in some of its responses, and justifies the
court taking a more robust approach to some of the denials .6 Given the
uncontested evidence that Boomerang was ambivalent from the start in
dealing with MKP, and the failure to deal with Boomerang ’s claim that it set
out the basis of its willingness to engage with MKP in the mediation, I am
inclined to accept it most probably did qualify the basis of its interaction with
MKP, namely that it reluctantly agreed to deal with it as a representative of
the strikers and that the MKP representatives accepted this de facto role,
even if they maintained they were not acting in that capacity.
[54] Be that as it may, after the meeting, MKP assisted some workers to lay
charges against management. This step must be unde rstood in the context
of the party having publicised in advance the action it was going to take in
accompanying the workers to engage and lay charges “against the racist
employer ” follow ed up with a media briefing on the charges and outcome of
6 See Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA).
At paragraph 12 of the judgment, the court re-iterated the general principle enunciated in
Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) , namely that “an
applicant who seeks final relief on motion must, in the event of confli ct, accept the version set
up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to
raise a real, genuine or bona fide dispute of fact or are so far -fetched or clearly untenable that
the court is justified in reje cting them merely on the papers ”. At paragraph 13 Heher JA
elaborated on what constitutes genuine disputes of fact and how the court should deal with
denials which do not warrant such classification: “‘A real, genuine and bona fide dispute of fact
can exist only where the court is satisfied that the party who purports to raise the dispute has in
his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of
course be ins tances where a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore be expected of him. But even that
may not be sufficient if the fact averred lies purely within the knowledge of the av erring party
and no basis is laid for disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing party must necessarily possess knowledge of them and be
able to provide an answer (or countervailing evidence) if t hey be not true or accurate but,
instead of doing so, rests his case on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is satisfied. I say “generally” because factual averments seldom
stand apart from a broader matrix of circumstances all of which needs to be borne in mind when
arriving at a decision. A litigant may not necessarily recognize or understand the nuances of a
bare or general denial as against a real attempt to grapple with all relevant factual alleg ations
made by the other party. But when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a l egal adviser who settles an
answering affidavit to ascertain and engage with facts which his client disputes and to reflect
such disputes fully and accurately in the answering affidavit. If that does not happen it should
come as no surprise that the court takes a robust view of the matter .’ (emphasis added)
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workers “airing their grievances ”. MKP was clearly taking the initiative by
this conduct and was emphasising its role in actively assisting the strikers.
The press briefing in question also referred all queries only to the party’s
national spok esperson and Gibisela , who was designated in the briefing as
the ‘workers’ representative’. The fact that Gibisela was identified in this
way is a strong indication that MKP’s labour desk was fulfilling the role of
the strikers ’ representative . It also makes Boomerang ’s allegat ion that this
was also how the MKP delegation portrayed itself in the mediation session
more credible .
[55] Consonant with this approach to the dispute giving rise to the strike, it is not
surprising that MKP could not provide details of a single concrete exam ple
of an occasion when it had encouraged strikers to return to work. Even on
its own account, it never told the strikers to regularise their dispute by
following the strike procedures in the LRA. Its last WhatsApp message to
Boomerang on 30 May clearly reflects its view that only the resolution of the
dispute would lead to workers returning to work. It speaks authoritatively of
workers returning to work on 2 June 2025 if matters were resolved. This is
the type of communication that would normally emanate from a union
pursuing members demands while a strike continues. Once again, it
supports the contention that it was acting in the capacity of a representative
of the strikers.
[56] Considering the above, I am satisfied that, to all intents and purposes, MKP
and its labour desk were performing the function normally performed by a
trade union, without being one , irrespective of how it and its labour desk
portrayed their role . The fact that the strikers were content to allow it to
perform this function only strength ens the conclusion that it was not a
bystander or advis er on the sidelines of the dispute . From the inception of
the strike it was at the forefront of the interface between management and
the strikers playing a representative role. When the picket took pla ce outside
the farm premises, its members and Gana stood with the members and
played an active role in confronting the management representatives who
approached the picket. It also played a major role in channelling the way in
which the dispute was handled .
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[57] MKP sought to persuade the court that the role it played was a constructive
one of promoting mediation. It argues that nothing done in its name caused
any harm to Boomerang . However , apart from acting as the de facto
representative of the strikers, MKP simultaneously actively engaged in
stimulating animosity towards Boomerang . It did so by publicising wider -
ranging accusations of inhumane treatment , assault and racism on the part
of Boomerang , at the very same time it was supposedly engaging in good
faith with management. For present purposes it does not matter if any of
these more egregious allegations were true or not. What is relevant is that
these public statements were issued by the party in the context of the
ongoing unprotected strike at a stage when discussions to resolve issues
had only just commenced.
[58] In the last media briefing MKP vilified Boomerang and Strachan as being
part of a long history of racial oppression going back to Jan Van Riebeeck .
Boomerang was described as a ‘colonial nest’ and ‘active site of colonial
exploitation’. This socio -political polemic was completely absent from the
striker’s list of grievances and was plainly an effort by MKP to elevate the
dispute to a broader political level, which complimented its call for an audit
of western cape farms, mentioned previously. The tone and thrust of the
media campaign was plainly antagonistic towards Boomerang and its
management, and completely at odds with MKP’s purported role as a mere
advis er attempting to facilitate a settlement of grievances.
[59] Anyone reading MKP briefings vilifying Boomerang and its management
would have been led to believe that the strike was a legitimate response to
an abominable working environment and appalling employer, which
deserved to be supported. Whate ver other purpose these actions might
have had, they were aimed at foster ing public sympathy or support for the
strikers and public antipathy towards the employer. I agree , other than the
fact that MKP was in communication with the strikers even prior to the onset
of the strike, that there is no evidence that it instigated the strike.
Nonetheless, it consistently assumed the role of the representative of the
strikers in purs uit of their demands, participated actively in the protest
outside the farm gates and launched a media attack on Boomerang ,
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portraying it in villainous terms, all of which lent direct or indirect support to
the strike.
[60] It was argued by MKP that Gana was n ot authorised to act on its behalf and
was merely acting as a trusted community leader and therefore none of the
conduct he engaged in could be attributed to the party. MKP’s attempt to
distance itself from hi s actions is unconvincing. On Saturday 26 April , it was
he who contacted Ndhlela for assistance with the matter. A side from being
National Chairperson of the party, Ndhlela was a member of MKP’s National
High Command, which Ndhlela described as “ the highest decision making
body of MKP ”. Ndhlela did not advise Gana to leave the matter in the hands
of other members of the Labour Desk, nor is there any evidence that Ndhlela
communicated directly with other member of the labour desk. After his initial
communication with Gana, it was Gana who contacted Ganya who set up
the initial meeting with Boomerang . He acted as part of MKP’s labour desk ,
or in tandem with it, in the interacti ons with Boomerang and all the evidence
points to them acting in harmony . Ndhlela himself attended the mediation,
which Gana had ar ranged. Neither Ndhlela nor Gibisele interfered with or
countermanded his interactions with Boomerang. Gana was not a maverick
party member acting on a frolic of his own.
[61] In the circumstances, Boomerang is entitled to an order confirming the
interim relief granted to cover action committed in contemplation of or
furtherance of the unprotected strike by MKP. The only aspect of the relief
which requires modification is the order against acts of intimidatio n, as this
was not proven on the final papers apart from an incendiary slogan being
uttered during the gathering at the farm gates on 28 April. In any event as
the strike is currently dormant, and the relief awarded in paragraph 4.4 of
the interim order wa s made in the context of strike action which was still
underway, it is not appropriate to confirm that relief , which might be
construed as dealing with incidents arising independently of a strike being
underway.7
7 See in this regard the comments of the court in Centlec (SOC) Ltd v South African Municipal
Workers Union and Others (2019) 40 ILJ 846 (LC) at paragraph 10.
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Costs
[62] MKP argues it should not be held li able for the costs of postponing the
hearing on 30 May 2025 on the basis that it had to be postponed in any
event for the attorneys of the individual respondents to get proper
instructions and file answering papers. That may be so, but its late filing of
its supplementary answering affidavit was equally a contributing factor,
which necessitated a delay. In the circumstances it should bear half the
costs
[63] On the question of MKP’s liability for the remaining costs of the application,
a relevant factor is that MKP chose to become embroiled in the dispute The
party has failed to prove its role was merely advisory . I accept on the papers
that even though it was involved in the employees’ dispute even before the
strike began, it has not been established that insti gated the strike incited
workers to embark or on strike action. However, its conduct once the
unprotected strike was underway entailed supporting and representing the
strikers in pursuit of their demands and aggressively and publicly
denigrating Boomerang and its management. In this respect , not only did it
engage in the unprotected action in the capacity of a proxy union but som e
of its conduct was irreconcilable with the aim of constructively resolving the
dispute . Rather , it was more likely to exacerbate matters.
[64] Boomerang had no option but to launch the application to curtail the action
of the strikers themselves and MKP’s actions in support of the strike . There
is no reason why should not have to bear part of the costs of the application.
In this insta nce, MKP was a third party intervening in the dispute and
considerations of an ongoing relationship that might exist between a union
or employees with an employer have no bearing on the question of costs.
However, in the situation of the strikers is not the same. U ltimately , they did
not oppose the final relief and given that those who were not dismissed have
returned to work and are still in an employment relationship with
Boomerang , I am disinclined to award costs against them based on
considera tions of law and fairness.
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Order
Accordingly, a final order is made in the following terms:
1. It is declared that the strike action by the Second to Further Respondents
which commenced on 26 April 2025 is unprotected and unlawful, as
contemplated in Section 64(1)(a) read with Section 68(1) of the Labour
Relations Act, 66 of 1995.
2. The First Respondent is interdicted and restrained from encouraging,
participating in, or promoting the unprotected strike manner whatsoever.
3. The Second to Further Respondent s are interdicted and restrained from
encouraging, participating in, or promoting the unprotected strike.
4. The First Respondent must pay half the Applicant’s wasted costs of the
postponement on 30 May 2025 , including the costs of two counsel .
5. G de Bruyn Att orneys, must show cause within 30 days of the date of this
judgment why they should not be held liable for payment of half of the
Applicant’s wasted costs , including the costs of two counsel.
6. The First Respondent must pay half the remaining costs of the Applicant
including the costs of two counsel , excluding costs of the postponement
on 30 May 2025, which are dealt with in paragraphs 4 and 5 of this order .
________
R Lagrange
Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: C De Kock a ssisted by D Seale instructed by
Carelse Khan Attorneys
For the 1st Respondent: BF Nothling instructed by Ndou Attorneys
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