IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH CASE NO.:
P508/98
In the matter between
FOOD & GENERAL WORKERS UNION First
Applicant
S S KUDIN & 6 OTHERS Further Applicants
and
THE MINISTER OF SAFETY & SECURITY First
Respondent
NATIONAL COMMISSIONER FOR S.A.P.S. Second
Respondent
MEC FOR SAFETY AND SECURITY E.C. Third
Respondent
UITENHAGE STATION COMMISSIONER Fourth
Respondent
PICARDI HOTELS LTD Fifth Respondent
REASONS FOR ORDER
GROGAN AJ:
[1] This application was heard as a matter of urgency on 30 December 1998,
and dismissed on the same day. The following is an amplification of the ex
tempore reasons I gave for the decision, amended where necessary upon
further reflection.
[2] The applicants seek a rule nisi inter alia declaring “that the strike between
the Applicants and the Fifth Respondents ( sic) is a labour dispute between
an employer and its employees and that the strikers have a right to picket
the employer’s business in support of their protected strike and the police
are not supposed to interfere unless a criminal act has been committed”.
They also seek an order interdicting the respondents “or any of their
employees from unlawfully interfering with the strike in any manner”.
[3] While the draft orders are not a model of lucidity, it is clear that the orders
sought amount in essence to a declarator that the conduct in which the
second and further applicants are currently engaged amounts to a strike
that complies with the provisions of the Labour Relations Act 66 of 1995
(“the Act”), and an interdict restraining the respondents from interfering
with their right to picket in accordance with section 69.
[4] The second and further applicants (seven in number) were employed by
the fifth respondent at its Uitenhage store. They were and still are
members of the first applicant. On 30 May 1998 the first applicant
submitted a number of demands concerning wages and conditions of
service to the fifth respondent. The fifth respondent declined to enter into
negotiations over these demands. On 28 September 1998 the first
applicant referred a dispute with the fifth respondent to the CCMA. On 27
October 1998 the parties met under the auspices of the Commission to
attempt conciliation. When this proved unsuccessful the conciliating
commissioner issued a certificate indicating that a dispute concerning a
“refusal to bargain” remained unresolved. On 18 December 1998 the first
applicant gave the fifth respondent notice of its members’ intention to
commence a strike on 23 December 1998. The conciliating commissioner
issued an advisory award on 22 December 1998. After the strike
commenced, the fifth respondent issued a number of ultimatums and then
dismissed the second and further applicants at about 14h00 on the same
day. The applicants referred a dispute concerning their dismissals to the
CCMA on 26 December 1998. The present application was filed on 29
December 1998. The applicants did not disclose the fact that they had
been dismissed in either their founding affidavit or the documents annexed
thereto, and the Court was only appraised of this fact when the fifth
respondent filed its answering affidavit just before the application was
heard.
[5] Mr Baker, who appeared for the fifth respondent, contended that this Court
lacks jurisdiction to entertain the application. One of the bases for this
submission was that the strike had ended when the second and further
applicants were dismissed. Since the applicants were no longer engaged
in strike action at the time of this application, so Mr Baker reasoned, the
conduct against which they sought protection was neither strike action nor
picketing within the statutory meaning of those terms.
[6] This Court acquires its power to grant interim relief, interdicts and
declaratory orders from section 158(1) of the Act. Its jurisdiction is
established by section 157, subsection 1 of which reads:
“Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect
of all matters that elsewhere in terms of this Act or in terms of any other
law are to be determined by the Labour Court.”
Subsection 2 grants this Court concurrent jurisdiction with the High Court
over acts by the State in its capacity as employer.
[7] The powers conferred upon this Court by section 158(1) can only be
exercised in matters over which it has jurisdiction. As far as industrial
action is concerned, the Act expressly grants this Court exclusive
jurisdiction to grant an interdict or order to restrain persons from
participating in strikes or lockouts that do not comply with the provisions of
the Act: see section 68(1)(a). Nowhere does the Act expressly grant this
Court jurisdiction to interdict conduct that is alleged to interfere with the
employees’ right to strike, as qualified by sections 64 and 65. Section 5 of
the Act, however, provides that no person may prevent an employee from
exercising any rights conferred by the Act. These include the right to
strike: see section 64(1). I am therefore satisfied that interference by any
person – including agents of the State in the lawful exercise by
employees of the right to strike can in appropriate circumstances be
interdicted in terms of section 158(1)(a)(ii), and that this Court has
exclusive jurisdiction to entertain applications for such relief.
[8] The central question posed by the fifth respondent’s jurisdictional point is
this: Are persons who have been dismissed entitled to seek protection
from this Court against interference by others of the exercise of their right
to strike? Mr Baker submitted that by virtue of section 64 only employees
can strike. This means, he contends, that once striking employees are
dismissed, the strike comes to an end because they cease to be
employees.
[9] “Strike” is defined in section 213 of the Act as
“… the partial or complete refusal to work, or the retardation or obstruction
of work, by persons who are or have been employed by the same
employer or by different employers, for the purpose of remedying a
grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee …” (Emphasis added.)
[10] At first glance, the words “have been” suggest that employees can be
deemed to be on strike even if they are not at the time employed by the
employer against which the strike was initially directed. This is the
construction placed on the definition by this Court in Afrox Ltd v SACWU &
others; SACWU & others v Afrox Ltd [1997] 4 BLLR 382 (LC) at 387C.
That observation is, however, obiter. There is no other authority of which I
am aware that deals with the status of a strike after the employer has
exercised its power to dismiss the strikers.
[11] When employees are dismissed, whether in the context of a strike or
otherwise, they cease to be employees within the meaning of the statutory
definition of that term. This much is clear from the tense in which that
definition is expressed. I quote:
“‘employee’ means –
any person, excluding an independent contractor, who works for another person
or for the State and who receives, or is entitled to receive, any
remuneration; and
any other person who in any manner assists in carrying on or conducting the
business of an employer,
and ‘employed’ and ‘employment’ have meanings corresponding to that of
‘employee’.”
[12] Section 64(1) confers the right to strike only on employees, as defined. It
is clear that only employees as defined, or registered trade unions acting
on their behalf, can set in motion the various procedures prescribed in sub
section 1, which must be followed if the strikers are to enjoy protection
under the Act. Only employees as defined can refuse to work. Although
persons other than employees can obstruct or retard work, the inclusion of
this phrase in the definition cannot have been intended to signify that non
employees can initiate strike action. That the word “person” is used in
sections 65, 67 and 68 does not, in my opinion, alter the plain meaning of
section 64. In my view, therefore, a strike can be initiated only by persons
who are employees at the time of its commencement.
[13] But does it follow that if employees who commence a strike are dismissed
thereafter, their conduct is no longer covered by that definition, and that
the parties can consequently no longer approach this Court for relief in
respect of disputes arising from such action? Mr Nduzulwana, who
appeared for the applicants, contended that this cannot be the case
because it would give the employer an unfettered power to deprive strikers
of protection by dismissing them, even if the strike was protected. It would
also, he said, give employers the power to decide for themselves whether
a strike was protected. If employers can bring a strike to an end by
dismissing the strikers, they could also deprive of the strikers of their right
to picket. And, I would add, the employer could, by resorting to the
expedient of dismissal, derive a strategic advantage by doing so, and then
subsequently offering to reinstate the strikers.
[14] If, as Mr Baker contends, strike action ceases in all circumstances from the
moment strikers are dismissed, the effect on this Court’s jurisdiction over
strike action would be seriously compromised. Firstly, its jurisdiction to
grant an interdict against misconduct in furtherance of the demand or
grievance underlying the dispute, which up to then vested in this Court by
virtue of section 68 (see Sappi Fine Papers (Pty) Limited (Adamas Mill) v
PPWAWU & others [1997] 10 BLLR 1373 (E); Mondi Paper (a division of
Mondi Ltd) v PPWAWU (1997) 18 ILJ 84 (D)), would shift to the High
Court immediately the employer dismissed the strikers. Since concurrent
jurisdiction has not been provided for in these circumstances, this Court
could no longer intervene. Second, an interdict granted by this Court
before the dismissal could immediately cease to be of effect when the
strikers were dismissed. Such a situation would, in my view, be in conflict
with the intention behind the creation of this Court as a specialist tribunal
charged with the responsibility of applying an Act, one of the central
purposes of which is the promotion of orderly collective bargaining and the
effective resolution of labour disputes: see the remarks of Nepgen J in
Sappi Fine Papers supra at 1385AC. It must be assumed, therefore, that
the legislature intended to avoid these results by the insertion of the words
“or have been employed by the same employer” in the definition of strike
(quoted above).
[15] It may be artificial to accept that dismissed workers can be on strike in the
ordinary meaning of that term. A strike is aimed at compelling an
employer to do or refrain from doing something in its capacity as such – or
in the words of the statutory definition, at “remedying a grievance or
resolving a dispute in respect of any matter of mutual interest between
employer and employee ”. It may be arguable that once employees who
had been on strike are dismissed, any further action they might take
cannot have this aim because the mutuality of interest between them and
their former employer comes to an end. It is significant, however, that the
legislature has refrained from using the definite article before the words
“employer” and “employee”. The intention behind this omission must be
that, in order to constitute a strike within the meaning of the definition, the
grievance or dispute must relate to matters of mutual concern to
employers and employees generally, and need not be limited to matters of
mutual interest to the strikers and their own employer. Were this not the
case, the definition of “strike” would not cover secondary strikes. In the
present context, this means that former employees can in principle have a
grievance that can be said to relate to a “matter of mutual interest between
employer and employee” in the general sense.
[16] The above reasoning is fortified by the principle that there are
circumstances in which an employment relationship can extend beyond
the formal termination of the contract of employment. This principle was
confirmed in National Union of Automobile & Allied Workers Union (now
known as National Union of Metalworkers of SA) v BorgWarner SA (Pty)
Ltd (1994) 15 ILJ 509 (A), in which it was said:
“Under the common law, parties conclude a contract under which one of
them is to provide services in return for payment. Their agreement
determines when the relationship so constituted starts; what reciprocal
rights and duties are acquired and incurred by each; and, if it is to be of
indefinite duration, how it is to be terminated.
The unmistakable intent of labour legislation generally, is to intrude,
or permit the intrusion of third parties, on this relationship in innumerable
ways…. [The LRA] – the primary purpose of which is to ensure industrial
peace by the promotion of collective bargaining – does that, and more. It
goes beyond intruding, or permitting intrusion by others, as regards the
terms which govern the employment relationship while it lasts. It
envisages intrusion as regards the very duration of the relationship,
regardless of commonlaw notions of consensus between the individual
employer and employee on that score."
[17] Although BorgWarner was decided under the 1956 Labour Relations Act,
there are indications that the legislature intended to give the ratio of that
judgment legislative force in the current Act. The most obvious example of
where it has done so is item 2(1)(d) of Schedule 7. Sections 187(b) and
(d) provide other examples. In my opinion, the formulation of the strike
definition is a further example.
[18] There are several reasons why the legislature should seek to ensure that
the employment relationship between an employer and its workers who
are on strike should in appropriate circumstances endure beyond the
formal termination of the contract by the employer. I have already
mentioned some of the jurisdictional anomalies that could arise were this
not to be the case. Further considerations are the very purpose of strike
action, and the manner in which the exercise of the constitutional right to
strike, and the countervailing commonlaw right to lockout, have been
regulated in the Act. The purpose of strike action is to enable workers to
bring pressure to bear on their employers by the withdrawal of their labour
in order to induce them to comply with some workrelated demand. To
facilitate the achievement of this purpose, the Act has limited the
employer’s commonlaw right to terminate on the basis of what would
otherwise be a breach of contract, the legislature has created the concept
of a protected strike. Once protection is acquired by compliance with the
Act, the employer is precluded from dismissing the strikers for the Act of
striking per se : see section 67(4). Such a dismissal is rendered
“automatically unfair”: see section 187(1)(a). It is further provided that
participation in a protected strike does not constitute a delict or a breach of
contract: see section 67(2). To equalise the power balance, the
employer’s commonlaw right to withhold payment of remuneration for the
duration of the strike is confirmed: see section 67(3). So also, by
implication, is its right to take on replacement labour: see section 76. The
employer is also given the right to lock the strikers out, provided that it may
not dismiss them pursuant to such lockout: see section 64(1), read with
section187(c).
[19] The effect of the above provisions is to suspend the operation of the
contract for the duration of the protected strike to enable the parties to
resolve their dispute by power play. Part of that power play might be the
exercise by the employer of its commonlaw right to dismiss. The exercise
of that right may be in compliance with the Act if the employees are guilty
of misconduct during the course of the strike, or if dismissal is necessary
for the operational requirements of the employer: see section 67(5). But if
it is not justified by one of the above provisions, the dismissal will
contravene section 67(4), which states in unequivocal terms that an
employer “may not dismiss an employee for participating in a protected
strike or for any conduct in contemplation or in furtherance of a protected
strike”. In my opinion, a dismissal in contravention of section 67(4) is a
nullity. Since it has no force and effect, it cannot terminate the
employment relationship between the employees and the employer
concerned. In other words, a dismissal in contravention of section 67(4) is
not one of the ways in which a strike can come to an end. To this extent, I
am in agreement with Mr Nduzulwana’s answer to the jurisdictional point
raised on behalf of the fifth respondent.
[20] However, it will have been noted that all the provisions cited above apply
to protected strikes. In the case of unprotected strikes, the dismissal of the
strikers has a different effect. It is expressly provided in section 68(5) that
“[p]articipation in a strike that does not comply with the provisions of this
Chapter, or conduct in contemplation or in furtherance of that strike, may
constitute a fair reason for dismissal”. Schedule 8 to the Act further
provides that “participation in a strike that does not comply with the
provisions of Chapter IV is misconduct”: see item 6(1). Misconduct is one
of the permissible grounds for dismissing an employee: see section 188(1)
(a).
[21] It is clear, therefore, that the legislature treats protected strikes on a basis
wholly different from the way in which it treats unprotected strikes. So, too,
does it treat dismissals in the two contexts in a completely different way.
The dismissal of an “unprotected” striker is not void ab initio , as is the
dismissal of a participant in a protected strike. On the contrary, like any
other form of dismissal, the dismissal of an “unprotected” striker brings the
contract to an end from the moment of the dismissal: see Edgars Stores
Ltd v SACCAWU [1998] 5 BLLR 447 (LAC). It must also bring an end to
the employment relationship – unless and until that relationship is
subsequently revived by an order of this Court in terms of section 191(5)
(b)(iii). It must follow too that the dismissal of the participant in a strike that
is not in compliance with the Act also deprives this Court of jurisdiction to
intrude into any disputes between the dismissed employees and their
former employer under section 158(1).
[22] In my opinion, therefore, the contention advanced by Mr Baker – namely,
that if strikers are dismissed a strike in all circumstances immediately
comes to an end, and with it the jurisdiction of this Court is cast too
widely. My view is that a strike continues after the dismissal of the strikers,
provided that:
they have complied with the provisions of the Act;
they have been dismissed for the act of striking per se in contravention of
section 67(4);
the conduct in which they are engaged after their dismissal amounts to a
continuation of the original strike.
However, if the strike is not protected, the dismissal of the strikers
terminates the strike and also the jurisdiction of this Court in respect of the
participants’ subsequent actions.
[23] It follows therefore, that Mr Baker’s jurisdictional point can succeed only if
the applicants are engaged in an “unprotected” strike. I turn now to that
issue.
[24] As will have been seen from the above resume of the material facts, the
applicants referred a dispute to the CCMA, which issued a certificate that
the dispute had not been resolved. Thereafter, the applicants served
notice of their intention to commence strike action on the fifth respondent.
All this is in compliance with section 64(1). According to Mr Nduzulwana,
this rendered the strike protected. Mr Baker contended, however, that the
strike was unlawful at its inception because the applicants had not
complied with section 64(2) of the Act. The relevant parts of that section
read:
“If the issue in dispute concerns a refusal to bargain, an advisory award
must have been made in terms of section 135(3)(c) before notice is given
in terms of subsection 1(b) or (c). A refusal to bargain includes –
a refusal –
to recognise a trade union as a collective bargaining agent;
….”
[25] It is clear that the legislature intends to impose an additional procedural
requirement in the case of intended strikes involving a “refusal to bargain”,
as defined. This is that an advisory award be issued. Only once this has
been done can the notice prescribed by section 64(1)(b) be served. This
additional requirement applies only to disputes involving refusals to
bargain.
[26] Mr Nduzulwana contended that the issue in dispute underlying the
applicants’ strike cannot be classified as a “refusal to bargain”. He drew
my attention in this regard to the formulation of the strike notice, which
provides as the reason for the proposed strike “your Company’s refusal to
give them [i.e. the second and further applicants] wage increases for
1998”. This indicated, so Mr Nduzulwana argued, that the real issue
underlying the dispute was not the failure by the fifth respondent to
recognise the first applicant as a bargaining agent, but the fifth
respondent’s refusal to grant a wage increase, even if unilaterally.
[27] This submission overlooks the fact that wouldbe strikers must identify and
declare the issue in dispute prior to setting in motion the procedure
prescribed by section 64(1)(a). Once that issue has been identified and
dealt with in conciliation, the wouldbe strikers can only strike over that
issue. They cannot change the goal posts when they issue the notice in
terms of section 64(1)(b). How the applicants understood and designated
the issue in dispute when they referred the matter to conciliation is
therefore of crucial importance.
[28] While it is so that the dispute between the parties in this matter was
initiated by a standard demand for a wage increase and improvement in
certain conditions of service, this is not enough in itself to categorise the
ensuing dispute as one concerning a mere matter of mutual interest, as Mr
Nduzulwana would have it. It is recorded in the unchallenged answering
affidavit of Mr D Schnetler, the fifth respondent’s regional manager, that
the first applicant had been informed on a number of occasions, and again
after receiving the demands, that the fifth respondent was not prepared to
negotiate with the first applicant because it was “entirely unrepresentative”
in the Eastern Cape operations. In the form LRA 7.11 upon which the
dispute was filed with the CCMA, the first applicant described the dispute
as being about (I quote verbatim) “refusal of the Company to negotiate
wage increment and conditions of employment”. The desired outcome
was that the fifth respondent “grant us organisational rights and allow us to
negotiate wage increment and adjustments of conditions of employment of
our members”. Furthermore, under the heading “special features” the first
applicant proposed “a meeting with the company for wage negotiations”.
The first applicant also confirmed that “the Company’s response was that
we don’t have a majority in the Eastern Cape Region, and added: “Our
argument is that we have the Majority which the L.R.A. refers to at the
workplace.” Furthermore, in the founding affidavit to this application it is
stated:
“The company advised the union verbally that it is refusing to negotiate
wage increases and adjustments of conditions of employment with the
union because the union does not have a majority of its employees,
employed in the Eastern Cape Region, but conceded that in its Uitenhage
shop the union has [a] majority of its employees.”
[29] The meaning of the phrase “refusal to recognise a trade union as a
collective bargaining agent” has not yet received judicial attention. Mr
Nduzulwana contended that the phrase should be restrictively construed
so as to embrace only disputes arising out of the refusal by an employer to
enter into a formal recognition agreement with a trade union. Although I
am conscious that, in so far as they curtail the constitutional right to strike,
restrictions imposed by the Act on strike action should be narrowly
interpreted (see, for example, Adams & others v Coin Security Group (Pty)
Ltd Labour Court case no. C163/97 dated 3 September 1998,
unreported), in my view the phrase “refusal to recognise a trade union as a
collective bargaining agent” embraces situations, such as those in casu , in
which the employer refuses to negotiate with a trade union over wages
and conditions of service.
[30] The test propounded in those cases in which the concept “issue in dispute”
has been applied is to seek the real underlying dispute between the
parties: see Ceramic Industries Ltd t/a Betta Sanitaryware v NCABAWU
[1997] 6 BLLR 697 (LAC ); Fidelity Guards Holdings (Pty) Ltd v PTWU
[1997] 9 BLLR 1125 (LAC); Adams & others v Coin Security Group (Pty)
Ltd supra. The most effective way of doing so is to ask whether the
dispute would have been resolved had the employer complied with the
demand or grievance in which the issue is articulated: see Adams & others
v Coin Security Group supra.
[31] It is clear that had the fifth respondent agreed during conciliation that it
would commence bargaining with the first applicant, the dispute would
have been resolved. The conciliating commissioner was therefore correct
when he designated the dispute as being about a “refusal to bargain”.
That being the case, the applicants were obliged in terms of section 64(2)
to await an advisory award before issuing the notice required by section
64(1)(b). That the commissioner in this case delayed issuing the advisory
award until prompted to do so by the fifth respondent did not relieve the
applicants of their obligation to comply with the peremptory provisions of
section 64(2). Nor does the fact that the advisory award happened to be
issued after the applicants served their notice on the fifth respondent, but
before they commenced the strike, serve to condone their noncompliance
with section 64(2). The purpose of section 64(2) is clearly to compel the
parties to seriously consider the advisory award before deciding whether to
strike. This purpose would be frustrated if employees could give notice of
their intention to strike before receiving an advisory award. I merely note
that in this case the commissioner advised that the applicants did not have
a right to bargain with the fifth respondent.
[32] Mr Nduzulwana contended that the applicants were not bound by section
64(2) because the commissioner had elected to deal with the matter by
mediation at the conciliation meeting. He argued that once the
commissioner had chosen one of the three processes for attempting to
resolve the dispute that are set out in section 135(3), he was bound by that
election and could not later adopt another process at the instigation of one
party. There is no merit to this contention. Section 135(3) merely
indicates some of the processes a conciliating commissioner can use to
attempt to resolve disputes. That provision relates to conciliation
proceedings generally. Section 64(2) relates specifically to disputes
concerning refusals to bargain. It requires a commissioner to issue an
advisory award. And it requires the employee parties (c.f. the word
“must”) to await such award before serving a prestrike notice on the
employer. Generalia specialibus non derogant . If the commissioner was
tardy about issuing the advisory award, the applicants should have placed
pressure upon him to do so.
[33] It follows that the strike in which the applicants engaged on 23 December
1998 was unlawful for want of compliance with the provisions of section
64(2) of the Act. Their dismissal on that day brought an end to the
employment relationship between them and the fifth respondent. The
conduct in which the applicants were engaged thereafter was accordingly
not a strike over which this Court has jurisdiction.
[34] Even if I am wrong in finding that the strike has ended and that this Court
lacks jurisdiction to entertain this application, there are other reasons for
denying the applicants the relief that they seek. The first, and obvious, is
that the strike was unlawful. It follows that the conduct in furtherance of
such strike for which the applicants now seek protection is also unlawful:
see section 69(1)(a).
[35] Furthermore, as mentioned above, a protected strike can be deemed to
continue beyond the dismissal of the strikers only if their conduct after their
dismissal can be deemed to be a continuation of the original strike. This
must apply also to an unprotected strike. The condition is necessary
because otherwise the use of the term “have been employed” in the strike
definition would mean that, once strikers have been dismissed, the strike
must be deemed to continue in perpetuity. As is noted in the Afrox case
supra a strike can end in various ways. Landman J observes in this regard
at 386DF:
“One way for a strike to terminate is where the workers abandon the strike.
This normally takes the place [ sc. form] of an unconditional return to work.
Another possible way, for there are probably other ways (Cf. “Some
aspects of the termination of a dismissal lockout” 1994 Contemporary
Labour Law 7983) is by the disappearance of the substratum. If the
casus belli is removed, for example, by the employer conceding to the
demands of the strikers or by removing the grievance or by resolving the
dispute then the foundations of the strike fall away. The strike is no longer
functional. It has no purpose and it terminates. When the strike
terminates so does its protection. It is not in the interests of labour peace
for a strike action to be continued in such circumstances even in the case
of a protected strike. See section 1 of the LRA.”
[36] These observations apply also to strikes that are deemed to continue after
the dismissal of the strikers, whether protected or not. It may well be that
a strike may end after the dismissal of the strikers. The strikers may, for
example, simply accept their fate and look for other employment or go
home. Or they may abandon their original grievance and demand
reinstatement. In the latter case, the original strike would be deemed to
have ceased.
[37] In the present case the applicants commenced their strike on 23
December 1998. Their strike, according to the submissions of their
representative, was in support of a demand for improved wages and
conditions of service. The fifth respondent replied by dismissing the
strikers, thereby putting to an end the possibility of their wages and
conditions of service being improved (unless, of course, they are
reinstated by order of this Court pursuant to the section 191(5)(b)
application). Unless the second and further applicants are continuing
to assemble at the fifth respondent’s premises to induce it to improve
wages and conditions of service for employees still in its service – and
there is no allegation to this effect on the papers there is no point to their
action. As far as the demand is linked to their own wages and conditions
of service, it cannot possibly be met unless their contracts are renewed. It
may well be that that will ultimately happen by order of this Court. That is
an issue which this Court need not decide. However, while the
employment relationship remains severed there can be no point to
continued strike action in support of the applicants’ professed demand.
Such a strike would no longer be functional to collective bargaining. And,
in my view, it would not be in the interests of labour peace for this Court to
endorse and protect the continuation of picketing by granting the orders
sought in this application, even if it had jurisdiction to do so.
[38] Mr Nduzulwana contends that even if the applicants cannot rely on section
69 to assert their right to gather outside the fifth respondent’s premises,
they can invoke their general constitutional rights of assembly and to
demonstrate peacefully. This may be so. But this Court is not the forum to
protect citizens in the exercise of their general constitutional rights, except
where and to the extent that such constitutional rights are
protected by the Act. In this respect also, this Court lacks jurisdiction to
grant the relief sought in so far as it seeks to interdict the respondents from
interfering with their conduct.
[39] Finally, I am of the opinion that this application fails to meet one of the
essential criteria for the granting of urgent relief. It is trite that in order to
do so, the applicants must persuade the Court that they have no adequate
alternative remedy: see inter alia Spur Steak Ranches Ltd v Spur Steak
Ranch, Claremont 1996 (3) SA 706 (C) at 714BC. The Act provides
specific remedies for employees and employers when they fall into
dispute, in terms of which this Court can be approached for relief. Section
69(8) provides specific relief against parties who are allegedly undermining
the effective use of the right to picket. The applicants could and should
have approached the CCMA for conciliation in terms of subsection 10.
They could then have approached this Court, on an urgent basis if
necessary, under section 69(11).
[40] For the above reasons the application was dismissed.
[41] Since the parties have an ongoing relationship and in view of the novel
points raised by the application I did not a deem a cost order to be
appropriate.
_________________
GROGAN AJ
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 30 December 1998
DATE OF ORDER: 30 December 1998
DATE OF REASONS: 2 January 1999
FOR THE APPLICANTS: Mr E NDUZULWANA of Food & General Workers Union
FOR THE FIFTH RESPONDENT: Mr C BAKER of Chris Baker & Associates