CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 145/24

In the matter between:


SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION Applicant

and

MASSMART HOLDINGS LIMITED First Respondent

MASSDISCOUNTERS (PTY) LIMITED t/a GAME Second Respondent

MASSBUILD t/a BUILDERS EXPRESS, BUILDERS
WAREHOUSE, BUILDERS SUPERSTORE AND
BUILDERS TRADE DEPOT Third Respondent

MASSMART WHOLESALE t/a JUMBO
CASH AND CARRY Fourth Respondent

MASSTORES (PTY) LIMITED t/a MAKRO Fifth Respondent

MASSCASH (PTY) LIMITED Sixth Respondent

MASSMART RETAIL (PTY) LIMITED t/a
CAMBRIDGE FOOD AND RHINO
CASH AND CARRY Seventh Respondent



Neutral citation: South African Commercial Catering and Allied Workers Union v
Massmart Holdings Ltd and Others [2026] ZACC 11

Coram: Madlanga ADCJ, Dambuza AJ, Goosen AJ, Majiedt J, Mhlantla J,
Opperman AJ, Rogers J, Theron J and Tshiqi J

2
Judgments: Dambuza AJ (minority): [1] to [40]
Majiedt J (majority): [41] to [84]

Heard on: 06 May 2025

Decided on: 25 March 2026

Summary: Labour Relations Act 66 of 1995 — interpretation of
section 68(1)(b) — claim for payment of just and equitable
compensation — loss attributable to conduct occurring during
picketing — picketing in furtherance of a protected strike

Section 69(12) — interpretation — picketing as conduct in
furtherance of a strike under section 68(1)

Labour Court does not have jurisdiction to consider claim for just
and equitable compensation in pro tected strikes — only High
Court may consider such claims based on delict




ORDER



On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court,
Johannesburg):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Labour Appeal Court is set aside and replaced with the
following:
“The appeal is upheld, the order of the Labour Court is set aside and
replaced as follows:
‘(a) The first exception is upheld.
(b) The second to fourth exceptions are dismissed.’”

DAMBUZA AJ
3

JUDGMENT




DAMBUZA AJ:


Introduction
[1] The issue in this application for leave to appeal is whether the Labour Court has
jurisdiction to determine a claim for just and equitable compensation under
section 68(1)(b) of the Labour Relations Act1 (LRA) for loss attributable to conduct that
occurs during a protected strike. In the Labour Court, the respondents,
Massmart Holdings Ltd and its six subsidiaries2 (Massmart), brought a claim against
the South African Commercial Catering and Allied Workers Union (SACCAWU) for
compensation for loss occasioned as a result of the conduct of members, officials ,
representatives and supporters of SACCAWU whilst picketing during a protected
strike. SACCAWU raised an e xception to the claim as pleaded by Massmart,
contending that the Labour Court does not have jurisdiction to determine such a claim
because the conduct complained of occurred during a protected strike. The exception
was dismissed by the Labour Court. So was SACCAWU’s appeal to the Labour Appeal
Court against the decision of the Labour Court. In this application, SACCAWU seeks
leave to appeal against the judgment of the Labour Appeal Court.

Background
[2] The events to which Massmart’s claim relates occurred during May 2021. On
23 May 2021, SACCAWU notified Massmart that its representatives, officials,
members and supporters intended to conduct a strike and an associated picket from

1 66 of 1995.
2 The following six respondents, cited as second to seventh respondents, are all subsidiaries of Massmart Holdings:
Massdiscounters (Pty) Ltd t/a Game; Massbuild (Pty) Ltd t/a Builders Express, Builders Superstore and Builders
Trade Depot; Massmart W holesale t/a Jumbo Cash and Carry; Masstores (Pty) Ltd t/a Makro; Masscash (Pty)
Ltd; and Massmart Retail (Pty) Ltd t/a Cambridge Food and Rhino Cash and Carry.

DAMBUZA AJ
4
06h00 on 26 May 2021 to 06h00 on 29 May 2021. On 25 May 2021, the day preceding
the start of the strike, Massmart’s application to the Labour Court for an interdict to stop
the strike was dismissed. The strike was scheduled to begin at approximately 13h30 on
26 May 2021. It is not in dispute that the strike was protected under the provisions of
Chapter IV of the LRA.

[3] In its statement of claim in the Labour Court, Massmart alleged that those
engaged in the strike under the banner of SACCAWU were required to adhere t o the
provisions of Chapter IV of the LRA, to strike peacefully and not to engage in unlawful
conduct, or conduct constituting an offence under the regulations issued in terms of
section 27(2) of the Disaster Management Act .3 The strikers were also expect ed to
comply with a workplace plan and the Covid -19 guidelines which were in place at
Massmart’s business premises at various locations throughout the country during this
period.

[4] According to the statement of claim, because Massmart and SACCAWU did not
agree on the rules that would apply to the picket that was to be conducted in furtherance
of the strike, the Commissioner for Conciliation, Mediation and Arbitration
(Commissioner) determined picketing rules. The rules provided, among other things,
that pickets would be held in designated areas near each affected store . Picketers had
to conduct themselves in a peaceful, lawful manner and comply with the relevant
Covid-19 Regulations. They would not be armed or be in possession of dangerous
weapons or objects. Picketers were not allowed to use hate speech, make defamatory
statements or incite violence. They would not prevent Massmart’s suppliers, clients,
customers or members of the public, employees who were not on strike and/or
replacement workers from e ntering or leaving Massmart’s premises. They were also
not allowed to intimidate, coerce, threaten or assault any person or to threaten to cause
damage to Massmart’s property.

damage to Massmart’s property.


3 57 of 2002.

DAMBUZA AJ
5
[5] The statement of claim further state d that, during the strike, the picketing
workers breached the picketing rules by committing offences and that they together with
SACCAWU “wrongfully and negligently or intentionally” fail ed to ensure strike
compliance. It was alleged that SACCAWU and its members failed to adhere to
provisions of the LRA, section 17 of the Constitution, the Covid -19 Regulations and
certain provisions of the Occupational Health and Safety Act.4 The allegation was that
SACCAWU failed to manage its members ’ conduct to ensure adherence to the rules
and picketing within the designated areas, and to appoint sufficient marshals. More
particularly, the picketers allegedly picketed outside the designated areas, bloc ked the
entrances to the stores, made untrue statements on the radio concerning the disputes
underlying the strike, picketed inside the malls, damaged property and threatened and
intimidated Massmart’s employees and customers, with the result that Massmart was
forced to close its stores for hours during the strike period. 5 Further allegations were
that the picketers did not wear masks during the strike, in breach of the Covid -19
Regulations, and that they did not maintain the stipulated distance of at least two metres
between people. According to Massmart, after the strike was over, SACCAWU brought
an application in the Labour Court to review and set aside the picketing rules insofar as
they confined the picketers to designated areas and precluded picketing at the premises
of Massmart.

[6] Massmart pleaded that despite its notification to SACCAWU that its members
and supporters were acting in breach of the picketing rules, SACCAWU failed to ensure
that the strikers acted in compliance with the strike framework . Consequently, the
conduct deprived the strike and/or the picket of protection under Chapter IV of the LRA.
It further pleaded that the conduct of SACCAWU and its members resulted in it

It further pleaded that the conduct of SACCAWU and its members resulted in it
suffering loss of profit running into millions of Rands,6 and that it was entitled to recover

4 85 of 1993.
5 Massmart alleges disruption of business operation at its Game sto res, including stores located in Gilwell,
Pietermaritzburg, King William ’s T own, Fleurdal, Richards Bay, Beacon Bay, Bela Bela, Lebowakgomo and
Evaton. Business was also disrupted at its Builders stores in Heidelberg and Rivonia, the Browns Cash and Carry
in Nongoma and Lusikisiki, the Jumbo stores in Ottery and Phillippi and the Cash and Carry in Manguzi.
6 The amount pleaded was R9 383 454.57.

DAMBUZA AJ
6
its losses from SACCAWU as compensation in terms of section 68(1)(b) of the LRA.
Finally, Massmart pleaded that it was just and equitable that SACCAWU be ordered to
pay compensation in the full amount of its losses.

[7] SACCAWU raised five exceptions to the statement of claim. Only the exception
relating to the Labour Court’s jurisdiction to determine the claim for compensation is
before us. As stated above, in its exception to the statement of claim, SACCAWU
contended that the Labour Court’s jurisdiction to order just and equitable compensation
under section 68(1)(b) of the LRA was limited to loss occasioned during an unprotected
strike. The argument was that the conduct in which SAC CAWU members were
engaged occurred “in furtherance” of a strike that complied with the LRA. Because the
strike was protected under section 67 of the LRA, the Labour Court had no jurisdiction
to determine the pleaded claim. Instead, Massmart only had a delictual claim, which it
could prosecute only in the High Court.

[8] The Labour Court dismissed four of the exceptions, including the one before us.
SACCAWU abandoned the fifth. In dismissing the exception on jurisdiction (in reality
a special plea of lack of jurisdiction), the Labour Court reasoned that the immunities
established under section 67(2) and (6) of the LRA in respect of protected strikes are
not absolute because section 67(8) provides that the subsections “do not apply to any
act in contemplation or in furtherance of a strike or lock -out, if that act is an offence”.
The Labour Court adopted the Supreme Court of Appeal’s interpretation of
section 68(1)(b) in Dunlop Mixing,7 which held that a claim for compensation may be
properly brought in relation to conduct undertaken during a protected strike where such
conduct constitutes an offence or is in breach of the requirements of Chapter IV of the
LRA.

[9] SACCAWU’s appeal to the Labour Appeal Court against the judgment of the

LRA.

[9] SACCAWU’s appeal to the Labour Appeal Court against the judgment of the
Labour Court failed. The Labour Appeal Court agreed with the Labour Court. It

7 National Union of Metalworkers of SA v Dunlop Mixing & Technical Services (Pty) Ltd [2020] ZASCA 161 ;
[2021] 3 BLLR 221 (SCA); (2021) 42 ILJ 475 (SCA) at para 18.

DAMBUZA AJ
7
rejected SACCAWU’s contention that Massmart’s claim was founded in common law.
It reasoned that although section 68 is headed “[s]trike or lock -out not in compliance
with this Act”, the provision is also concerned with any conduct in contemplation or
furtherance of a strike or lock -out that does not comply with the provisions of
Chapter IV.8 It concluded that the words “any conduct” in section 68(1) include
conduct that is unlawful, “even if it arises during the course of a protected strike”. The
Labour Appeal Court also referred, with approval, to a decision of the Labour Court in
Lomati Mill Barberton,9 in which the Court held that unlawful conduct that occurs in
contemplation or furtherance of a strike or lock -out, and which constitutes a criminal
offence, is unprotected.

[10] In this Court, SACCAWU persists in the arguments that it made in the
Labour Court and the Labour Appeal Court. It contends that where criminal conduct
occurs du ring a protected strike, civil liability resulting from that conduct is
determinable in the High Court in accordance with delictual and contractual principles.
The Labour Court has no jurisdiction to grant compensation under section 68(1)(b) in
respect of protected strikes, SACCAWU argues. Further, the Labour Court also does
not have concurrent jurisdiction with the High Court as provided in section 157(2) of
the LRA. The jurisdictional prerequisite for the application of section 68 is the
existence of an unprotected strike or lock-out.

[11] Massmart’s argument is essentially that, within the regulatory scheme created in
Chapter IV of the LRA, protection is afforded to protected strikes and good faith
conduct that is undertaken in furtherance of strikes. How ever, picketing that breaches
the determined rules is not protected.


8 SA Commercial Catering and Allied Workers Union v Massmart Holding Ltd [2024] ZALAC 13; (2024) 45 ILJ
1610 (LAC) (LAC judgment) at para 19.

1610 (LAC) (LAC judgment) at para 19.
9 Lomati Mill Barberton (A division of Sappi Timber Industries) v Paper Printing Wood and Allied Workers Union
(1997) 4 BCLR 415 (LC); (1997) 18 ILJ 178 (LC).

DAMBUZA AJ
8
Jurisdiction
[12] The parties agree that the issue engages the jurisdiction of this Court. Indeed,
the interpretation of the provisions of the LRA, in this case sections 67, 68 and 69, all
of which fall under Chapter IV of the LRA, is reserved for the Labour Court.
Importantly, the LRA was enacted to give effect to sections 17 and 23 of the
Constitution, which guarantee the right to peacefully assemble, demonstrate and picket
and the right to fair labour practices. The application engages this Court’s constitutional
jurisdiction.

Leave to appeal
[13] It is in the interests of justice that leave be granted. The issues that arise in this
application are important to a significant section of our s ociety, particularly the
country’s industrial and labour sectors. In addition, conflicting judgments of the
Labour Appeal Court and the Supreme Court of Appeal on the issues that arise in this
matter require this Court’s consideration. Furthermore, this Court has not
comprehensively determined the issues arising in this application.

Discussion
The Labour Court’s jurisdiction
[14] The objectives of the LRA are to give effect to and regulate the fundamental
rights conferred in sections 17 and 23 of the Constitution, together with South Africa’s
obligations as a member state of the International Labour Organization. The LRA
provides a framework within which employees and their trade unions, employers and
employers’ organisations can collectively bargain for determination of wages, terms
and conditions of employment and other matters of mutual interest. The framework is
intended to promote orderly bargaining and effective resolution of labour disputes,
amongst other things.10


10 Section 1 of the LRA.

DAMBUZA AJ
9
[15] Against this background, the Labour Court and Labour Appeal Court were
established as specialist superior courts to determine labour disputes arising from the
relationship between employees, employers and trade unions. These courts are steeped
in workplace issues and specially designed to deal with complaints relating to labour
practices and collective bargaining. As this Court held in Chirwa in relation to the
primary objectives of the LRA—

“[t]he first is to establish a comprehensive framework of law governing the labour and
employment relations between employers and employees in all sectors. The other is
the objective to establish the Labour Court and Labour Appeal Court as superior courts,
with exclusive jurisdiction to decide matters arising from the LRA.”11

[16] The purpose is to ensure fair labour practices and labour peace, with the two
courts resolving disputes arising from the LRA. The exclusiv e jurisdiction of the
Labour Court is regulated under section 157(1) of the LRA, which provides that
“[s]ubject 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”.

[17] In terms of section 157(2) of the LRA, the Labour Court has concurrent
jurisdiction with the High Court in disputes concerning fundamental human rights
violations in the workplace and matters relating to contracts of employment under the
Basic Conditions of Employment Act.12 We are not here concerned with the
Labour Court’s concurrent jurisdiction.

[18] In Gcaba,13 this Court held that the Labour Court has exclusive jurisdiction over
any matter that the LRA prescribes should be determined by it. In addition, this Court

11 Chirwa v Transnet Limited [2007] ZACC 23; [2008] 2 BLLR 97 (CC); 2008 (3) BCLR 251 (CC); 2008 (4) SA

367 (CC) at para 123.
12 75 of 1997. Section 17 of this Act amended section 68 of the LRA.
13 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) BCLR 35 (CC); 2010 (1) SA 238 (CC).

DAMBUZA AJ
10
has held that section 157(1) of the LRA must be interpreted generously to ensure that
the Labour Court’s jurisdiction is sufficie ntly broad to enable it to address a wide
variety of labour disputes.

Chapter IV of the LRA
[19] Section 68 of the LRA, which is at the centre of the dispute before us, is located
within Chapter IV of that Act. The Chapter comprises 14 sections, from 64 to 77. It is
a scheme created to regulate the right to strike and the recourse to lock-out.14 Section 64
prescribes the requirements for exercising the right to strike and the recourse to
lock-out. In section 65, the Chapter sets limitations on the right to strike and the related
recourse to lock -out. The requirement of compliance with the LRA when exercising
the right to strike or recourse to lock -out is a consistent feature in Chapter IV. In
Dunlop Mixing,15 the Supreme Court of Appe al described this as the requirement that
the rights are exercised in good faith. While the LRA affirms the right of every
employee to strike and the recourse of every employer to lock -out, it does so on the
condition that the prerequisites for exercising those rights are met. Section 66 regulates
secondary strikes. The right regulated in this section is subject to a limitation under
section 66(2) to the extent that no person may take part in a secondary strike where the
strike does not conform with the provisions of sections 64 and 65.16

[20] Section 67(1) defines “protected strike” as used in Chapter IV as “a strike that
complies with the provisions of [Chapter IV]”, and “protected lock-out” as “a lock-out
that complies with the provisions of [Chapter IV] ”.17 While good faith exercise of the
right to strike and the recourse to lock-out is promoted, protected and immunised from
liability, conduct in breach of the provisions of Chapter IV triggers the availability of
just and equitable remedies under sections 68(1)(b) and 69. A person who participates

just and equitable remedies under sections 68(1)(b) and 69. A person who participates
in a compliant strike or engages in conduct in furtherance of a strike does not commit

14 Section 64 of the LRA.
15 Dunlop Mixing above n 7 at paras 35 and 37.
16 Section 66 of the LRA.
17 Emphasis in original.

DAMBUZA AJ
11
any delict and is protected from civil suits. It is useful to set out these sections in full.
Section 67, headed “Strike or lock-out in compliance with this Act”, provides:

“(1) In this Chapter, ‘protected strike’ means a strike that complies with the
provisions of this Chapter and ‘protected lock-out’ means a lock-out that
complies with the provisions of this Chapter.
(2) A person does not commit a delict or a breach of contract by taking part in—
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or
a protected lock-out.
(3) Despite subsection (2), an employer is not obliged to remunerate an employee
for services that the employee does not render during a protected strike or a
protected lock-out, however—
(a) if the employee’s remuneration includes payment in kind in respect of
accommodation, the provision of food and other basic amenities of
life, the employer, at the request of the employee, must not discontinue
the payment in kind during the strike or lock-out; and
(b) after the end of th e strike or lock-out, the employer may recover the
monetary value of the payment in kind made at the request of the
employee during the strike or lock-out from the employee by way of
civil proceedings instituted in the Labour Court.
(4) 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.
(5) Subsection (4) does not preclude an employer from fairly dismissing an
employee in accordance with the provisions of Chapter VIII for a reason related
to the employee’s conduct during the strike, or for a reason based on the
employer’s operational requirements.
(6) Civil legal proceedings may not be instituted against any person for—
(a) participating in a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or
a protected lock-out.

a protected lock-out.
(7) The failure by a registered trade union or a registered employers’ organisation
to comply with a provision in its constitution requiring it to conduct a ballot of
those of its members in respect of whom it intends to call a strike or lock-out
may not give rise to, or constitute a ground for, any litigation that will affect

DAMBUZA AJ
12
the legality of, and the protection conferred by this section on, the strike or
lock-out.
(8) The provisions of subsections (2) and (6) do not apply to any act in
contemplation or in furtherance of a strike or a lock-out, if that act is an
offence.” (Emphasis in original.)

Section 68(1) of the LRA
[21] Section 68, headed “Strike or lock-out not in compliance with this Act”, reads:

“(1) In the case of any strike or lock-out, or any conduct in contemplation or in
furtherance of a strike or lock-out, that does not comply with the provisions of
this Chapter, the Labour Court has exclusive jurisdiction—
(a) to grant an interdict or order to restrain—
(i) any person from participating in a strike or any conduct in
contemplation or in furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any loss
attributable to the strike or lock-out, or conduct, having regard to—
(i) whether—
(aa) attempts were made to comply with the provisions of
this Chapter and the extent of those attempts;
(bb) the strike or lock-out was premeditated;
(cc) the strike or lock-out or conduct was in response to
unjustified conduct by another party to the dispute;
and
(dd) there was compliance with an order granted in terms
of paragraph (a);
(ii) the interests of collective bargaining;
(iii) the duration of the strike or lock-out or conduct; and
(iv) the financial position of the employer, trade union or
employees respectively.” (Emphasis in original.)

[22] Significantly, the introductory part to section 68(1) refers to “any strike or
lock-out or conduct” that does not comply with the provisions of “this Chapter”. Prior

DAMBUZA AJ
13
to its amendment in 2002 by the Labour Relations Amendment Act,18 section 68(1)(b)
did not contain the words “or conduct”. In Stuttafords,19 the Labour Appeal Court held
that the Labour Court has no jurisdiction under the section to award loss attributable to
a protected strike or lock-out. It reasoned that the reference to a strike or lock-out under
section 68(1)(b) was in relation to an unprotected strike or lock-out because “the use of
the article ‘the’ just before the words ‘strike or lock-out’ was an indication that the strike
or lock -out referred to is the one already referred to . . . at the opening part of
subsection (1) of section 68”.20

[23] SACCAWU contends that the issue in this appeal must be resolved in line with
the interpretation adopted by the Labour Appeal Court in Stuttafords. It argues that, in
Stuttafords, the Labour Appeal Court interpreted the provisions of section 68(1)
correctly, following the approach set out in Endumeni.21 SACCAWU highlights that
that interpretation is consistent with the objectives of the LRA, to provide extensive
immunity to employers and employees who resort to lawful lock-outs and strikes. The
argument is that the objective of the LRA is to protect, not only a strike or a lock -out,
but also conduct undertaken in contemplation or in furtherance of such action. Counsel
for SACCAWU submitted, and I agree, that the purpose of section 68 is to discourage
strikes and lock -outs that are not in accordance with the LRA. Hence, the lower
threshold in respect of liability for compensation in section 68.

[24] One must be mindful, however, that Stuttafords was decided prior to the 2002
amendment. The 2002 amendment broadened the scope of industrial action to which
the section relates. Prior to the 2002 amendment, section 68 read as follows:


18 12 of 2002.
19 Stuttafords Department Stores Ltd v SA Clothing and Textiles Workers Union [2000] ZALAC 22; [2001] 1

BLLR 46 (LAC); (2001) 22 ILJ 414 (LAC).
20 Id at para 31.
21 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA).

DAMBUZA AJ
14
“(1) In the case of any strike or lock-out, or any conduct in contemplation or in
furtherance of a strike or lock-out, that does not comply with the provisions of this
Chapter, the Labour Court has jurisdiction—
(a) to grant an interdict or order to restrain—
(i) any person from participating in a strike or any conduct in
contemplation or furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in
contemplation or in furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any loss
attributable to the strike or lock-out.” (Emphasis in original.)

[25] SACCAWU ignores the effect of the 2002 amendment, which introduced the
phrase “or conduct” into the introductory part of section 68(1)(b) and related
subsections (i)(bb), (i)(cc) and (ii). It ignores the fact that while the objective of section
67(2), (4), (6) and (7) of the LRA is to provide immunity to employees and employers
who engage in a protected strike or lock-out, it does not protect non-compliant conduct
that occurs in the course of a protected strike. The purpose is to discourage conduct
that is inconsistent with the provisions of the LRA.

[26] The language used in the main provision of section 68(1) is not complex. The
introductory part of the section, which confers exclusive jurisdict ion on the
Labour Court, applies to both section 68(1)(a) and (b). On a plain reading,
section 68(1)(b) provides that, in the case of any strike or lock -out, or any conduct in
contemplation or furtherance of a st rike or lock -out, that does not comply with the
provisions of Chapter IV, the Labour Court has exclusive jurisdiction to order the
payment of just and equitable compensation for any loss attributable to the strike,
lock-out or conduct.

[27] This interpretation accords with the fundamental tenet applica ble to the
interpretation of legal documents, to account for all the words used, in this case, in

interpretation of legal documents, to account for all the words used, in this case, in
section 68(1) and in other sections of Chapter IV that are relevant to the particular strike

DAMBUZA AJ
15
or lock-out. It also gives effect to the purpose 22 for which the word “conduct” must
have been introduced to the subsection, to broaden the scope of conduct in respect of
which compensation may be awarded by the Labour Court.

[28] Importantly, the factors set out under section 68(1 )(b)(i) to (iv) guide the
Labour Court in e xercising its discretion under section 68(1) , in determining whether
just and equitable compensation should be awarded and the quantum of such an award.
These factors include attempts made to comply with the provisions of the Chapter,
whether the strike, lock-out or conduct was premeditated and/or in response to
unjustified conduct by another party to the dispute, the interests of collective bargaining
and the financial position of the employer, trade union or employees . Proper
consideration of these factors lies within the expertise of the Labour Court and enhance
the exercise of that Court’s discretion in assessing equitable loss awards as opposed to
delictual awards, which are determinable in the High Court.

[29] It is true that the heading of section 68 refers only to “strike or lock -out not in
compliance with this Act”. The accepted approach to the interpretation of legal
documents is that the value of headings is limited by the language, the context and
purpose of the paragraph, statutory provision or the main document. Where there is no
conflict or ambiguity in the main text or content, as in this case, the heading cannot
override the language, context and purpose. The main function of headings in legal
documents is to give structure to the documen ts and assist the reader to navigate them.
The heading in section 68(1) serves this function. The difference between the heading
and the main provision is the absence of the word “conduct” from the heading. Clearly,
in this respect, the heading does not accurately reflect the content of the main provision,

in this respect, the heading does not accurately reflect the content of the main provision,
section 68(1), and ignores the effect of the 2002 amendment. Preference cannot be
given to the heading over the substantive text of the provision.


22 Id at para 18.

DAMBUZA AJ
16
[30] The fact that withdrawal of labour is compliant unde r the provisions of
sections 64, 65 and 67 is not the end of the matter. Compliance with other applicable
provisions in Chapter IV is required on an ongoing basis. Where conduct in
contemplation or furtherance of the strike or lock-out is undertaken, such conduct must
also comply with the provisions of the Chapter , hence, the inclusion of non -compliant
conduct in the statutory remedies provided for under section 68. The intention to
provide a remedy for loss occasioned as a result of a strike, lock-out or conduct that is
non-compliant under the Chapter is clear.

[31] In sum, the 2002 amendment broadened the reach of the compensation clause.
Whereas prior to the amendment a compensation order was only available in respect of
the strikes or lock-outs that were not in compliance with the provisions of Chapter IV,
the amendment extended the grant of just and equitable relief to “conduct in
contemplation or furtherance of the strike or lock -out” that is not in compliance with
the provisions of Chapter IV – in other words, conduct that breaches the provisions of
the Chapter – as opposed to all or general negligent breach of legal duty which causes
harm.

[32] Consequently, section 68, in its own terms , renders a person who engages in
conduct that is not in compliance with the provisions of the Chapter liable to a claim
for just and equitable compensation for said conduct. It does so by providing specific
statutory remedies, including just and equitable compensation, in respect of breaches of
the provisions of Chapter IV, that are distinct from delictual damages. In this regard,
Massmart’s cause of action is discussed in greater detail in the paragraphs that follow.23
Similarly, liability for just and equitable relief may be triggered under section 69 as
discussed in the paragraphs below.


23 See [33] to [36].

DAMBUZA AJ
17
Section 69 of the LRA
[33] Within Chapter IV, the provisions of section 69 give effect to and entrench the
right to strike by regulating picketing, a form of conduct undertaken by striking
employees to amplify the impact of their withdrawal of labour. Picketing is conduct
that is undertaken in support or furtherance of a protected strike or in opposition to any
lock-out.24 As in the other provisions under Chapter IV that have been discussed,
picketing is protected only insofar as it is conducted as a peaceful demonstration and in
compliance with the picketing rules. Needless to say, failure to comply with picketing
rules constitutes non -compliance with the provisions of Chapter IV. Under
section 69(6C), no picket in support of a protected strike or in opposition to a lock -out
may occur unless picketing rules are agreed to in a collective agreement binding on a
trade union, or in an agreement that has been concluded as provided in subsection (4),
or have been determined in terms of subsection (5) , as it happened in this case. 25 This
is consistent with the purpose expressed in section 1 of the LRA – to promote orderly
industrial action.

[34] Pickets are critical to the right to strike and to oppose lock -outs. They enable
employees and their trade unions to peacefully persuade non -striking employees and
members of the public to support the strikers or oppose lock-outs. Picketing is carefully
regulated under the LRA within the context of protected strikes. It is difficult to imagine
picketing occurring within or in furtherance of an unprot ected strike because, by its
nature, it is a regulated form of industrial action. Section 69 sets out a comprehensive
regime that regulates picketing. The section provides:

“(1) A registered trade union may authorise a picket by its members and supporters
for the purposes of peacefully demonstrating—
(a) in support of any protected strike; or
(b) in opposition to any lock-out.

(a) in support of any protected strike; or
(b) in opposition to any lock-out.

24 Section 69(1) of the LRA.
25 Section 69(6C) of the LRA.

DAMBUZA AJ
18
(2) Despite any law regulating the right of assembly, a picket authorised in terms
of subsection (1), may be held—
(a) in any place to which the public has access but outside the premises of
an employer; or
(b) with the permission of the employer, inside the employer’s premises.
(3) The permission referred to in subsection (2)(b) may not be unreasonably
withheld.
(4) Unless there is a collective agreement binding on the trade union that regulates
picketing, the commissioner conciliating the dispute must attempt to secure an
agreement between the parties to the dispute on rules that should apply to any
picket in relation to that strike or lock-out before the expiry of the period
contemplated in section 64(1)(a)(ii).
(5) If there is no collective agreement or no agreement is reached in terms of
subsection (4), the commissioner conciliating the dispute must determine
picketing rules, in accordance with any default picketing rules prescribed by
the Commission under section 208 or published in any code of good practice,
and in doing so must take account of—
(a) the particular circumstances of the workplace or other premises where
it is intended that the right to picket is to be exercised;
(b) any relevant code of good practice; and
(c) any representations made by the parties to the dispute attending the
conciliation meeting.
(6) The rules determined by the commissioner conciliating the dispute may
provide for picketing by employees—
(a) in a place contemplated in subsection 2(a) which is owned or
controlled by a person other than the employer, if that person has had
an opportunity to make representations to the commissioner
conciliating the dispute before the rules are determined; or
(b) on their employer’s premises if the commissioner conciliating the
dispute is satisfied that the employer’s permission has been
unreasonably withheld.
(6A) The commissioner conciliating the dispute must determine the picketing rules

(6A) The commissioner conciliating the dispute must determine the picketing rules
contemplated in subsection (5) at the same time as issuing any certificate
contemplated in section 64(1)(a).
. . .
(6C) No picket in support of a protected strike or in opposition to a lock-out may
take place unless picketing rules—

DAMBUZA AJ
19
(a) are agreed to in—
(i) a collective agreement binding on the trade union;
(ii) an agreement contemplated in subsection (4); or
(b) have been determined in terms of subsection (5).
(7) The provisions of section 67, read with the changes requ ired by the context,
apply to the call for, organisation of, or participation in a picket that complies
with the provisions of this section.
(8) Any party to a dispute about any of the following issues , including a person
contemplated in section ( 6)(a), may refer the dispute in writing to the
Commission—
(a) an allegation that the effective use of the right to picket is being
undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of a collective agreement or agreement
contemplated in subsection (4); or
(d) an alleged material breach of a picketing rule determined in terms of
subsection (5).
(9) The party who refers the dispute to the Commission must satisfy it that a copy
of the referral has been served on all the other parties to the dispute.
(10) The Commission must attempt to resolve the dispute through conciliation.
(11) If the dispute remains unresolved, any party to the dispute may refer it to the
Labour Court for adjudication.
(12) If a party has referred a dispute in terms of subsection (8) or (11), the
Labour Court may, in addition to any relief contemplated in section 68(1),
grant relief, including urgent interim relief, which is just and equitable in the
circumstances and which may include an order—
(a) directing any party, including any person contemplated in
subsection (6)(a), to comply with a picketing agreement or rule;
(b) varying the terms of a picketing agreement or rule; or
(c) suspending a picket at one or more of the loc ations designated in the
collective agreement, agreed rules contemplated in subsection (4) or
Rules determined by the Commission.” (Emphasis in original.)

Rules determined by the Commission.” (Emphasis in original.)

[35] Importantly, and as stated, the purpose of picketing in terms of section 69(1) is
peaceful demonstration. Strikers may opt to engage only in a strike, in the sense of
withdrawal of labour. Once they choose to picket, they must abide by the rules

DAMBUZA AJ
20
determined or agreed upon in relation to the picket. Where picketing rules are breached,
the picket ceases to comply with the provisions of Chapter IV and the protected strike
loses the statutory immunities provided in the LRA. In such circumstances,
section 69(12) empowers the Labour Court to grant relief, including just and equitable
urgent interim relief, “in addition to any relief contemplated in section 68(1)”. In this
case, Massmart pleaded the rules that were set by the Commissioner, details of the
breaches and the resultant loss, and sought an order of just and equitable compensation.
It pleaded that SACCAWU failed to ensure that the strikers conducted themselves in
compliance with the strike framework and that the breaches of the picket ing rules
deprived the conduct undertaken in furtherance of the strike and/or picket of the
protections afforded under Chapter IV of the LRA. Massmart’s cause of action is rooted
in the provisions of section 69 of the LRA. It did not merely plead negligence or breach
of a legal duty and causation in the private law sense.

[36] A litigant who seeks relief for breach of picketing rules, as Massmart does in this
case, must prove the breach. The interpretation of the picketing rules and the
determination of whether, indeed, there was such a breach, are issues in respect of which
the Labour Court has exclusive jurisdiction. T he relief sought is consequential upon
proof of breach and interpretation of the provisions of the LRA, not the common law.
Were Massmart to seek the statutory just and equitable relief for breach of picket ing
rules in the High Court, a special plea that the determination of such a claim is a matter
within the exclusive jurisdiction of the Labour Court would be valid . On the
interpretation advanced by SACCAWU, the High Court would have to determine issues
in respect of which the Labour Court has exclusive jurisdiction. This is not permissible.

Conclusion

Conclusion
[37] The argument that just and equitable relief is impermissible under
section 68(1)(b) in respect of conduct undertaken to further a protected strike takes into
account only a portion of Massmart’s pleaded cause of action – that the strike was
protected. It ignores the essence of the pleaded dispute – the breach of the picket

DAMBUZA AJ
21
framework. The argument further disregards the principle that the jurisdiction of the
Labour Court must be interpreted sufficiently broadly to ensure that labour relations
disputes are adjudicated by that Court. A proper consideration of the language used in
section 69 read with section 68(1)(b), the Chapter IV context and the purpose of the
relief provided in those sections supports the interpretation that the issues arising from
the pleadings in this case fall within the exclusive jurisdiction of the Labour Court. The
importation of the relief provided in section 68(1)(b) into section 69 provides an
additional basis for granting the section 68(1)(b) relief. This interpretation ensures
consistency in the regulation of strikes and confirms the purpose of the section – to
provide statutory remedies for conduct that is undertaken in furtherance of protected
strikes that is not compliant with the provisions in Chapter IV.

[38] This interpretation of section 68(1)(b) upholds the primary objectives of the
LRA: to establish a comprehensive legislative framework regulating orderly labour
relations and to establish the Labour Court and the Labour Appeal Court as superior
courts, with exclusive jurisdiction to decide matters arising from the LRA.26 It does not
divest strikers and labour unions engaged in a protected strike , conducted within the
prescripts of Chapter IV, of immunities available to them in terms of section 67. Rather,
it gives effect to the statutory remedy provided in the LRA, within the jurisdiction of
the specialised court (the Labour Court), for loss occasioned as a result of breach es of
the provis ions of Chapter IV during protected industrial action. It ought not to
discourage them from engaging in such a strike within the prescripts of Chapter IV.

[39] Importantly, this interpretation is informed by the pleaded case. The issue in this
case is the correct forum for the determination of a claim for breach of picketing rules

case is the correct forum for the determination of a claim for breach of picketing rules
and the consequential relief of just and equitable compensation. As specialist courts,
the Labour Court and Labour Appeal Court are specially design ed to deal with
complaints relating to labour practices. The breach of picketing rules is a matter within

26 See Motor Industry Staff Association v Macun N.O. [2015] ZASCA 190; [2016] 3 BLLR 284 (SCA); 2016 (5)
SA 76 (SCA) at para 18.

DAMBUZA AJ / MAJIEDT J
22
the specialist jurisdiction of the Labour Court. Relief consequent to such breach is
provided for in the LRA.

[40] I would have thus make an order granting leave to appeal but dismissing the
appeal with no order as to costs.



MAJIEDT J (Madlanga ADCJ, Goosen AJ, Mhlantla J, Opperman AJ, Rogers J,
Theron J and Tshiqi J concurring):


[41] I have read the judgment of my Colleague, Dambuza AJ (first judgment). I agree
that this case engages this Court’s jurisdiction and that leave to appeal ought to be
granted, but I part ways with my Colleague regarding the merits. I would uphold the
appeal.

[42] The first ju dgment extensively narrates the background factual matrix and the
issues to be determined. I will therefore confine my narration of the facts to those that
are important for my line of reasoning. For the reasons that follow, I take the view that
the Labo ur Appeal Court’s order and underlying reasoning (and that of the
Labour Court) are wrong. I also disagree with the Labour Appeal Court’s basis for
distinguishing Stuttafords27 from the present case. That Court erred in holding that
Stuttafords is distinguishable in light of the amendment to section 68(1)(b) of the LRA
in 2002 .28 The Labour Appeal Court was also mistaken in its reliance on Dunlop
Mixing,29 which has no bearing on the issues in this case.

[43] It bears repetition that this dispute ar ose in the c ontext of a claim for
compensation brought by Massmart against SACCAWU for alleged losses suffered as
a result of unlawful conduct committed during a protected strike. In the Labour Court,

27 Stuttafords above n 19.
28 LAC judgment above n 8 at para 21.
29 Dunlop Mixing above n 7.

MAJIEDT J
23
the Labour Appeal Court and this Court, the parties adopted contra ry positions in
relation to the interpretation of section 68(1)(b) of the LRA. In the main, SACCAWU
contends that the Labour Court lacks jurisdiction to adjudicate claims like the one
brought by Massmart, as section 68 relates exclusively to unprotected s trikes, while
Massmart argues that the provision encompasses any unlawful conduct during strike
action, regardless of whether the strike itself is protected.

[44] It is important to bear in mind that, on the common cause facts, the strike was
protected, in tha t it met the procedural and substantive requirements established by
sections 64 and 65 of the LRA , respectively. Massmart sought compensation of over
R9 million, claimed in terms of section 68(1)(b) for losses allegedly suffered as a result
of the unlawful conduct by the applicant’s members, officials, representatives and
supporters during the course of the protected strike. Broadly stated, Massmart’s
statement of claim alleged, amongst others, that the losses suffered were attributable to
the breach by the applicant and its members of provisions of the LRA, section 17 of the
Constitution, regulations in force under the Disaster Management Act and consolidated
directives on occupational health and safe ty measures. Massmart further claimed that
such conduct constituted criminal offences and was unlawful.

[45] Only one of the five exceptions raised by SACCAWU to Massmart’s statement
of claim is relevant to these proceedings. As the first judgment states, on e of the five
exceptions was abandoned and the Labour Court dismissed the other four. SACCAWU
averred that the Labour Court did not have jurisdiction in terms of section 68 to grant
just and equitable compensation for any loss attributable to a protected strike or
lock-out, or conduct in contemplation or furtherance of a protected strike or lock -out.

lock-out, or conduct in contemplation or furtherance of a protected strike or lock -out.
It contended further that the Labour Court’s jurisdiction in this regard was restricted to
unprotected strikes or lock-outs. According to SACCAWU, the statutory exception to
delictual liability in section 67(2) and (6) of the LRA did not apply where the strike
conduct constituted a criminal offence, as stipulated in section 67(8). In such cases,
liability was to be determined in accordance with delictual pri nciples, with the
appropriate forum being the High Court.

MAJIEDT J
24

[46] Massmart’s opposition to the exception was, in the main, based on its contentions
that section 68(1)(b) applies to unlawful conduct undertaken during any strike or
lock-out, regardless of whether it is protected or unprotected. It argued that the
2002 amendment to section 68(1)(b), which broadened its scope to include the phrase
“or conduct” , signalled the Legislature’s intention to extend the Labour Court’s
jurisdiction beyond claims solely related to unprotected strikes.

[47] Section 68(1)(b) in its pre-amended form has been reproduced in full in the first
judgment,30 as has the current iteration, after the 2002 amendment. 31 My Colleague
lays much emphasis on the inclusion o f the word “conduct” through the 2002
amendment. She opines that it “must have been introduced to the subsection, to broaden
the scope of conduct in respect of which compensation may be awarded by the Labour
Court”.32

[48] I disagree with that approach. The first judgment deals somewhat perfunctorily
with the headings of sections 67 and 68 of the LRA. 33 But they are important and, in
my view, decisive in this case. As both the headings and texts of these sections make
clear, section 67 deals with strikes that are compliant with the LRA (protected strikes),
while section 68 deals with strikes that are not (unprotected strikes).34

[49] Section 67, which only deals with protected strikes , provides that a protecte d
strike, or conduct in support of a protected strike, is not a delict. 35 Section 67(8)
qualifies this by stating that section 67(2) does not apply to conduct in support of a
protected strike where the conduct is an offence. But section 67 does n ot confer any

30 See the first judgment at [24].
31 Id at [21].
32 Id at [27].
33 Id at [20] and [29].
34 I am cognisant of the fact that the sections also deal with lock -outs, but for purposes of this judgment I refer
only to strikes.
35 See the first judgment at [20].

MAJIEDT J
25
jurisdiction on the Labour Court to award compensation in respect of criminal conduct
(or delictual conduct) in support of a protected strike.

[50] Section 68, on the other hand, deals exclusively with unprotected strikes. On a
plain reading of the introductory part of section 68(1) that precedes the powers of the
Labour Court (including the power to grant compensation), it is apparent that the phrase
“that does not comply with the provisions of this Chapter” refers to the “strike or
lock-out” contemplated in each of the preceding two phrases. It mirrors the preceding
section 67(2) and (6). An expanded version of section 68(1) would read:

“In the case of—
(a) any strike or lockout that does not comply with the provisions of this Chapter;
or
(b) any conduct in contemplation or in furtherance of a strike or lockout that does
not comply with the provisions of this Chapter, the Labour Court has exclusive
jurisdiction.”

[51] Thus understood, section 68(1) only applies to those cases where an employer is
seeking relief pursuant to the employees’ participation in an unprotected strike or the
employees’ participation in conduct in support of an unprotected strike. It most
certainly does not apply to protected strikes. S ection 68(1) does not relate to the
question whether conduct in support of the strike is unlawful in itself. On the other
hand, if conduct – even if not otherwise delictual – is in support of an unprotected strike,
the employer may seek relief from the L abour Court . That Court will then have
exclusive jurisdiction in such instances.

[52] This means that an employer’s right to relief in terms of section 68 depends on
the strike being unprotected. And the Labour Court’s exc lusive jurisdiction to grant
that relief is similarly dependent on the strike being unprotected. Section 68(5) has a
similar reading and effect: “[p]articipation in a strike that does not comply with the

similar reading and effect: “[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,

MAJIEDT J
26
may constitute a fair reason for dismissal”.36 The words “that strike” can, on any
sensible reading, only refer to the strike mentioned in the earlier part of the subsection,
namely a strike that does not comply with the provisions of the Chapter, in other words,
an unprotected strike. The section most certainly does not say that unlawful conduct in
contemplation or furtherance of a protected strike may constitute a fair reason for
dismissal. Whether unlawful conduct in contemplation or furtherance of a protected
strike may constitute a fair reason for dismissal turns on section 67(4) and (5), not on
section 68(5).

[53] In summary then, self -evidently, a clear distinction must be drawn between the
statutory effects of protected and unprotected strikes. As far as protected strikes are
concerned, in terms of section 67 of the LRA—
(a) there is immunity from civil liability, thus participation in a protected
strike or related conduct, does not amount to breach of contract or a delict
(section 67(2));
(b) there are protections against dismissals – employees cannot be dismissed
for striking or related conduct (section 67(4)), unless—
(i) the reason is legitimate misconduct during the strike, or
(ii) it is a dismissal based on operational requirements (section 67(5));
and
(c) there are limits of protection; that is, there is no immunity from civil
action for conduct that constitutes a criminal offence (section 67(8)), but
section 67 does not confer any jurisdiction in that regard on the
Labour Court.

[54] On the other hand, section 68 provides that employees and unions engaging in
unprotected strikes, and in conduct in contemplation or furtherance of an unprotected
strike, are not shielded from—
(a) dismissal;

36 Emphasis added.

MAJIEDT J
27
(b) civil action; and
(c) interdicts and claims for damages.

[55] It is noteworthy that the 1956 iteration of the LRA also recognised immunities
for legal strikes, but lacked express reference to conduct “in contemplation” of strikes
and clear statutory protection from dismissal for lawful strikers 37 (which evolved
through case law, amongst others – Blue Waters Hotel38). The immunity postulated in
the LRA’s present relevant provisions applies only to lawful strikes and actions directly
related to the strike, but does not cover unlawful strikes or actions that could lead to
criminal liability (except for defamation). The consequences of lawful industrial action
are: no immunity from criminal liability for participants; no civil liability for actions
taken in furtherance of the strike except for criminal conduct ; and the legality of the
action impacts the unfair labour practice analysis, which can influence whether certain
actions are deemed unfair.

[56] I cannot agree with the reasoning of the L abour Court (endorsed by the first
judgment) in interpreting the word “conduct” in section 68(1)(b) as not expressly linked
to unprotected strikes. That Court’s judgment emphasises that the absence of explicit
wording is not determinative; rather, necessary implication and contextual reading must
be applied. But, as I see it, the phrase “conduct in contemplation or in furtherance of a
strike or lock -out that does not comply with the provisions of this Chapter” in the
introductory part of section 68(1) necessarily applies to both paragraphs (a) and (b) of
the subsection. Section 68(1) sets a conditio n precedent for the jurisdiction of the
Labour Court, inasmuch as the section grants th at Court exclusive jurisdiction only in
matters involving unprotected strikes, lock -outs or related conduct. It serves as a
gatekeeper provision: unless the action is unprotected, the L abour Court has no
authority to issue interdicts or compensation orders under this section.

authority to issue interdicts or compensation orders under this section.


37 Section 17(D) of the Labour Relations Act 28 of 1956.
38 BAWU v Prestige Hotels CC t/a Blue Waters Hotel (1993) 14 ILJ 963 (LAC).

MAJIEDT J
28
[57] The pre-amended section 68(1)(b) did not contain any reference to “conduct” in
paragraph (b). The only reference to “conduct” was in section 68(1)(b)(i)(cc), in
relation to “unjustified conduct by another party to the dispute” prompting a strike or
lockout. This created an inconsistency with paragraph (a), which included both
unprotected action and conduct in contemplation or furtherance of an unprotected
strike. The 2002 amendment subsequently corrected this by inserting “or conduct” into
paragraph (b). There is plainly a need to harmonise sections 67 and 68. As stated, the
former applies to protected action and grants immunity from dismiss al or civil
proceedings, while the latter applies to unprotected action, permits interdicts,
compensation, and potential fair dismissal under section 68(5). Any interpretation that
gives section 68 power over protected action would directly conflict with section 67(6),
which prohibits such civil claims. Section 68(5) allows for dismissal for participation
in unprotected strikes or related conduct, provided it is fair, by applying the Code of
Good Practice: Dismissal (Schedule 8). This codifies a balancin g test – striking is a
right, but it must be exercised lawfully.

[58] The correct interpretation of section 68(1)(b) is the one advanced by
SACCAWU. This conclusion is inescapable for the reasons set out above. In short,
that interpretation accords with the plain words of the section, read in context with the
rest of that Chapter of the LRA and the statute as a whole. It also attains the purpose of
the provision. Moreover, if the phrase “does not comply with the provisions of this
Chapter” in section 68(1) is interpreted as referring to conduct (even where the strike is
protected), it would not be possible for compensation to be claimed in respect of lawful
conduct in support of an unprotected strike, since lawful conduct would not be in

conduct in support of an unprotected strike, since lawful conduct would not be in
contravention of the Chapter. This would considerably narrow the intended scope of
section 68(1)(b).

[59] Regarding conduct in contemplation or furtherance of a strike, section 68 is
concerned with such conduct – whether lawful or unlawful in itself – where it is in
contemplation or furtherance of an unprotected strike. If conduct is in furtherance of
an unprotected strike, for example, an interdict can be granted in terms of

MAJIEDT J
29
section 68(1)(a) even though the conduct – viewed in isolation – is not unlawful. The
critical feature that gives rise to jurisdiction under section 68(1) is the unprotected
nature of the strike. Section 68 discourages unprotected strikes by providing that
conduct in support of such strikes will not benefit from the protections contained in
section 67. The conduct contemplated in section 68 is “tainted” because it is undertaken
in contemplation or furtherance of an unprotected strike, and not because the conduct –
viewed apart from the strike – is contrary to Chapter IV or otherwise unlawful.

[60] On the first judgment’s interpretation of section 68(1), the words “that does not
comply with the provisions of this Chapter” (i.e. Chapter IV) may apply to conduct in
contemplation or furtherance of a strike, even though the strike itself is protected. On
that interpretation, one needs to search Chapter IV to determine whether the impugned
conduct is regulated by and is in violation of a provision in the Chapter. In the case of
employees, only picketing is regulated by Chapter IV (aside from strikes). I shall deal
shortly with the first judgment’s analysis of the interrelationship between section 68
and the picketing provisions in section 69.

[61] For the moment, however, the point I highlight is that section 68(1) applies to
conduct, not only by employees, but also by employers, that is, lock-outs and conduct
in contemplation or furtherance of lock-outs. There is no conduct by an employer, other
than a lock -out, that is regulated by the Chapter, so the reference in section 68(1) to
“conduct” would, on the first judgmen t’s interpretation, be rendered nugatory in the
case of employers.

[62] Even in relation to employees, the only conduct (aside from strikes) regulated by
Chapter IV is picketing, an aspect which will be considered later. The consequence is
that, on the first judgment’s interpretation, delictual or even criminal conduct in support

that, on the first judgment’s interpretation, delictual or even criminal conduct in support
of an unprotected strike does not fall within the scope of section 68(1), unless the
conduct in question can be regarded as a form of unlawful picketing. This consequence
would follow from the fact that such other delictual or even criminal conduct would be
unlawful, not because of non-compliance with the provisions of Chapter IV, but because

MAJIEDT J
30
of the violation of other delictual or criminal norms. This attenuates even further the
proper scope of section 68(1), because on the first judgment’s interpretation it excludes
from its net not only otherwise lawful conduct in support of an unprotected strike, but
even unlawful conduct unless the unlawfulness flows specifically from non-compliance
with a regulation contained in Chapter IV. This could never, in my view, have been the
lawmaker’s intent.

[63] If the Legislature had intended to grant jurisdiction to the Labour Court in respect
of delictual conduct in support of a protected strike, section 67 would have been the
place to do it, yet it is not there. Of course, this does not take away the employer’s right
to claim damages in delict for such conduct if it is criminal (section 67(8)), but the
employer needs to claim such damages in the ordinary courts and not in the
Labour Court.

[64] The next aspect for considerati on is the divergent approaches and outcomes in
Stuttafords and Dunlop Mixing. These two cases adopted contrary approaches to t he
interpretation of section 68(1)(b) of the LRA and its implications for compensation
claims during protected strikes and lock -outs. Stuttafords came before the L abour
Appeal Court at a time when section 68( 1)(b) had not been amended to include the
words “or conduct”.

[65] In Stuttafords, the key issue was whether the L abour Court has jurisdiction to
award compensation for losses resulting from a protected lock-out. The Labour Appeal
Court firmly answered th at question in the negative, holding that only unprotected
industrial action falls within the scope of section 68(1)(b). The Court emphasised the
significance of the definite arti cle “the” in the statute, which limits its application to
action “that does not comply” with Chapter IV, that is, unprotected action. This
interpretation aligns with section 67 of the LRA, which provides legal immunity and

interpretation aligns with section 67 of the LRA, which provides legal immunity and
protections for parties involved in protected industrial action, thereby reinforcing the
sanctity of lawful collective bargaining. The Labour Appeal Court further noted that
economic harm is an intended feature of protected strikes and lock -outs, serving as

MAJIEDT J
31
legitimate tools in labour negotiations. As such, courts should not interfere in these
situations by awarding compensation unless the strike action is unprotected.

[66] The fact that Stuttafords was decided prior to the 2002 amendment of
section 68(1)(b) does not in any way detract from the force of the reasoning in that case.
Its more expansive approach rightly recognises that conduct, when connected to th e
strike’s aims, may still fall within the protective scope of the LRA, affirming the
principle that not every act of unlawfulness should automatically strip workers of their
statutory protection. That approach aligns more closely with the purpose and structure
of the LRA, which seeks to balance the rights of workers to engage in collective action
with the need for lawful conduct. Both the Labour Appeal Court and the first judgment
are wrong when they seek to distinguish Stuttafords on this narrow basis.

[67] On the other hand, as I see it, Dunlop Mixing, relied upon by the Labour Appeal
Court (and by the first judgment) , cannot be applied here. It appears to me to be
distinguishable on both the facts and the law. In Dunlop Mixing, the Supreme Court of
Appeal considered whether a picket in support of a protected strike qualifies as a
“gathering” under the Regulation of Gatherings Act 39 (Gatherings Act) . It held that
while picketing may fit the general definition of a gathering, it is a specific form of
expression governed by section 69 of the LRA, which takes precedence as the more
specialised law. The S upreme Court of Appeal held that peaceful, lawful pickets fall
under the LRA’s protections, but if any criminal acts occur during such pickets, the
responsible parties may be liable under section 68(1). Ultimately, that Court ruled that
the Gatherings Act does not apply to conduct during authorised pickets regulated by the
LRA.

[68] Both the Labour Court and Labour Appeal Court opted to adopt the approach in

LRA.

[68] Both the Labour Court and Labour Appeal Court opted to adopt the approach in
Dunlop Mixing and declined to follow Stuttafords. My Colleague does so too. The
Labour Court rejected SACCAWU’s argument that the S upreme Court of Appeal’s

39 205 of 1993.

MAJIEDT J
32
remarks in Dunlop Mixing regarding section 68(1) of the LRA were merely obiter dicta
(incidental remarks, not essential to decide the case) . It held that the core issue before
the Court was whether, given the LRA’s detailed provisions on picketing and remedies
for strike -related loss, an aggrieved party could instead claim “riot damage” under
section 11 of the Gatherings Act. The Labour Court in the present instance held that in
Dunlop Mixing, the Supreme Court of Appeal’s interpretation of sections 67, 68 and 69,
and specifically, that section 68(1) applies to unlawful conduct linked to a protected
strike, was integral to the conclusion that the Gatherings Act does not apply to losses
arising from authorised pickets under the LRA. Regarding the perceived inconsistency
between Stuttafords and Dunlop Mixing, the L abour Court noted that Stuttafords was
decided under an earlier legislative framework, prior to amendments to section 68(1)(b).

[69] I agree with SACCAWU’s contention that the Supreme Court of Appeal’s
remarks in Dunlop Mixing regarding sections 67, 68 and 69 of the LRA were obiter
dicta. That much is clear from the discussion in paragraph 31 of that judgment, and the
paragraphs which follow it. The Labour Appeal Court rejected SACCAWU’s argument
that section 68(1)(b) of the LRA applies only to unprotected strikes and lock -outs, not
to conduct during protected strikes. That Court upheld the Labour Court’s decision,
and held that a plain reading of section 68(1)(b), especially after its 2002 amendment to
include “or any conduct” , indicated a legislative intent to extend the Labour Court’s
jurisdiction to include unlawful conduct occurring during protected strikes.

[70] The Labour Appeal Court referenced Dunlop Mixing, which, as stated, held that
protection under section 67(2) and (6) of the LRA is lost if criminal acts occur during a
strike, thereby permitting remedies under section 68(1). The Labour Appeal Court also

strike, thereby permitting remedies under section 68(1). The Labour Appeal Court also
distinguished Stuttafords, noting it was decided before these key amendments. It
concluded that allowing compensation claims only for unprotected strikes , but not for
unlawful conduct during protected ones , would be inconsistent and would weaken the
role of the Labour Court in adjudicating labour disputes.

MAJIEDT J
33
[71] In Stuttafords, the Labour Appeal Court adopted an expansive view and one that
can be described as worker -centred. As the S upreme Court of Appeal’s remarks in
Dunlop Mixing regarding this aspect were obiter dicta, I need say no more about them.
What bears repetition, though, is that they have no direct bearing on the central issue
now under discussion. The key question is whether conduct that is technically unlawful,
such as breaches of Chapter IV, can nonetheless be seen as part of the contemplation or
furtherance of a protected strike.

[72] The L abour Court and the L abour Appeal Court wrongly reject ed the broad,
worker-centred reasoning advanced in Stuttafords. And the first judgment wrongly
does so too. Although the Labour Appeal Court stopped short of explicitly equating all
unlawful conduct with unprotected action, its deference to Dunlop Mixing still signalled
a preference for a narrower application of the LRA.

[73] There is one last consideration which fortifies my view on Stuttafords and
Dunlop Mixing. This Court held, in Thistle Trust,40 that a court can have limited regard
to an explanatory memora ndum for a Bill in the interpretive exercise, as long as it
clearly articulates the underlying rationale for the legislative provision . SACCAWU
can thus legitimately rely on the explanatory memorandum to the 2002 amendment ,
albeit to the limited extent en unciated in Thistle Trust. In order to determine whether
Stuttafords is distinguishable from the current case and Dunlop Mixing, the materiality
of the 2002 amendment to section 68(1)(b) of the LRA must be assessed.

[74] Although the amendment added the words “or conduct”, the overall wording of
section 68(1)(b) remains unchanged from when Stuttafords and Dunlop Mixing were
decided. SACCAWU argued that this amendment simply clarified that compensation
could be sought for conduct in contemplation or furtherance of an unprotected strike,

could be sought for conduct in contemplation or furtherance of an unprotected strike,
aligning with Stuttafords. But, in Stuttafords, the Court already interpreted
section 68(1)(b) to include such conduct even before the amendment. Therefore, unless

40 Thistle Trust v Commissioner, for the South African Revenue Service [2024] ZACC 19; 2024 (12) BCLR 1563
(CC); 2025 (1) SA 70 (CC) at paras 65-7.

MAJIEDT J
34
the amendment was intended to codify that interpretation, Stuttafords does not fully
support SACCAWU’s argument.

[75] However, more recently, in Blinkwater Mills,41 which was decided after the 2002
amendment, the High Court reached the same conclusion as Stuttafords, finding that
section 68(1)(b) does not grant the Labour Court jurisdiction to award compensation for
losses arising from protected strikes.42 The Court emphasised that the status of a strike,
being protected or unprotected, is not altered by whether unlawful conduct occurs
during it and, thus, delictual claims arising from protected strikes fall outside the Labour
Court’s jurisdiction. Given the consistent reasoning in both Stuttafords and Blinkwater
Mills, the Labour Court and the Labour Appeal Court’s attempts to distinguish
Stuttafords from Dunlop Mixing, and the current case, do not bear scrutiny.

[76] In reaching its conclusion, the first judgment places significant reliance on
section 69(12) of the LRA, which empowers the Labour Court, in certain circumstances,
to grant additional just and equitable relief over and above that contemplated in
section 68(1). The subsection falls under the picketing provisions in section 69 of the
LRA. That approach is misconceived. Self -evidently, in seeking to apply
section 69(12), one must first engage with the provisions of section 68 and determine
its scope and ambit. To my mind, an unlawful picket in support of a protected strike
does not fall within the scope of section 68.

[77] It is necessary to provide a brief overview of section 69. Only registered trade
unions can arrange pickets. Picketing must be in support of a protected strike or in
opposition to any lock-out (protected or not). Unprotected strikes cannot be supported
by lawful picketing. Various picketing rules are set out in the section. The picketing
rules must be in place before the commencement of a protected strike or picket.43 These

41 Blinkwater Mills (Pty) Ltd v Food & Allied Workers Union (2020) 41 ILJ 873 (ML).
42 Id at para 13.
43 Section 69(6C).

MAJIEDT J
35
rules can be agreed upon in a collect ive agreement or between the parties during
conciliation, or can be determined by a commissioner if no agreement is reached.44

[78] Picketing may occur in publicly accessible areas outside the employer ’s
premises, or inside the premises with the employer’s permission.45 Extensive provision
is made for the resolution of disputes in relation to picketing. 46 If disputes arise , for
example, disputes about alleged breaches of picketing rules, they are referred to
conciliation, and if unresolved, to the Labour Court. That Court can then e nforce or
vary the picketing rules , suspend pickets at certain locations, or grant urgent interim
relief.

[79] In summary, p icketing is not an unregulated right ; its exercise is premised on
compliance with procedures and rules establishe d under the LRA. The law aims to
balance the rights of workers to demonstrate with the rights of employers and the
orderly resolution of industrial disputes. A failure to comply with picketing rules can
render the conduct unlawful and subject to Labour Court intervention.

[80] It is possible for section 69(12) to apply to a picket in support of an unprotected
strike. Section 69(1)(a) states that a union may authorise a picket , amongst others, “in
support of any protected strike”. In terms of section 69(8)(b), a picketing dispute may
arise where the employer contends that the picket is in material contravention of
section 69(1). If the picket has been organised in support of an unprotected strike, such
a picket is a material contravention of section 69(1)(a) . Therefore, in such a case the
employer could seek relief in terms of section 69(12), even though the strike is
unprotected. And, because the strike is unprotected, such an employer could also seek
relief in terms of section 68(1).


44 Section 69(4) to (5).
45 Section 69(2).
46 Section 69(8) to (12).

MAJIEDT J
36
[81] The first judgment’s reasoning in effect holds that s ection 69(12) empowers a
party to claim compensation as it would under section 68(1)(b). But that is not what
the section provides. It merely stipulates that “in addition to any relief contemplated in
section 68(1)”, the court may grant the relief set out in section 69(12). This simply
means that relief which a party may be entitled to claim in the Labour Court in terms of
section 68(1) is not excluded. Thus, section 69(12) simply preserves the Labour Court’s
right to grant any relief that section 68(1) may itself authorise. The only further relief
that section 69(12) itself authorises is relief relating to picketing (which section 68(2)
does not deal with at all), and that further relief may be granted on an urgent in terim
basis, provided it is just and equitable in the circumstances.

[82] It is therefore wrong to invoke section 69(12) as an aid to interpreting
section 68(2). It bears repetition that a n unlawful picket conducted in support of a
protected strike does not fall within the scope of section 68, but it may give rise to relief
under section 69(12). In these circumstances, section 69(12) provides no answer to the
central issue in this case.

[83] For these reasons, the appeal must be upheld. In accordance with the us ual
approach in labour matters, there will be no order as to costs.

[84] To conclude, for the reasons advanced, I make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Labour Appeal Court is set aside and replace d with the
following:
“The appeal is upheld ; the order of the Labour Court is set aside and
replaced as follows:
‘(a) The first exception is upheld.
(b) The second to fourth exceptions are dismissed.’”

For the Applicant:



For the Respondents:


F A Boda SC, R Itzkin and N Nyembe
instructed by Dockrat Incorporated
Attorneys

A Myburgh SC and I Goodman SC
instructed by Edward Nathan
Sonnenbergs Incorporated