THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: 2026-077439
In the matter between:
CHEP SOUTH AFRICA (PTY) LTD First Applicant
CONTRACT A-FORCE CORPORATE SOLUTIONS (PTY) LTD Second Applicant
and
SIMPHIWE ZUNGU AND 86 OTHERS First to Eighty-Seventh Respondents
SOUTH AFRICAN POLICE SERVICE Eighty-Eighth Respondent
Heard: 30 April 2026
Supplementary heads: 4 May 2026
Delivered: 18 May 2026
Labour Law - Strike and picketing - Urgent application for final interdict and declaratory
relief – Alleged breach of picketing rules and unlawful conduct.
Jurisdiction – Labour Court lacks jurisdiction to grant a final interdict prohibiting
picketing – dispute to be referred for conciliation – Court’s powers limited to granting
interim relief.
(1) Reportable: Yes
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Final Interdict – Requirements restated - Application of Plascon -Evans principle in
motion proceedings.
Unlawful conduct during strike – Mere participation in strike or picket insufficient to
justify interdict – Applicant must establish a factual link between individual respondent
and alleged unlawful conduct
Evidence – Hearsay and second- hand hearsay inadmissible and disregarded absent
application for admission – Video evidence coupled with failure by specifically identified
respondents to deny allegations may justify inference of participation or association in
misconduct
Relief – declaratory relief against identified respondents granted – final interdict refused
in the absence of evidence of ongoing or reasonably apprehended harm
JUDGMENT
MAKHURA, J
Introduction
[1] The applicants approached this Court on an urgent basis seeking final interdictory
and declaratory orders against the first to eighty -seventh respondents
(respondents) in the following terms:
‘2. declaring that 1st to 87th respondents are in breach of the Picketing Rules
agreed upon between CHEP, C -Force, and 1st to 87th respondents on 15
August 2025;
3. declaring that the conduct of the 1st to 87th respondents in assaulting and
threatening to assault employees of the applicants as a means of promoting,
encouraging, supporting and participating in the strike is unlawful and not in
compliance with Chapter IV of the Labour Relations Act;
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4. interdicting and restraining the 1st to 87th respondents from engaging in acts
of violence, intimidation, harassment, threats, obstruction of access to the Plant,
or any other unlawful conduct that has occurred during the course of the strike;
5. interdicting and restraining the 1st to 87th respondents from picketing in
support of the strike at CHEP’s plant situated at 1[…] Y[…] Road, Jet Park;
6. interdicting and restraining the 1st to 87th respondents from calling for,
orchestrating, participating in or encouraging in any way the picket, or any
conduct in contemplation or in furtherance of the picket;’
[2] The essence of the application is that the applicants seek to interdict both the
alleged misconduct or unlawful conduct and the picketing. The respondents
oppose the application and contend that the Court lacks jurisdiction to entertain the
application to interdict the picket. Further, t hey deny the allegations of unlawful
conduct.
Material facts
[3] The dispute between the parties stems from various demands raised by the
respondents, which were referred to the Commission for Conciliation, Mediation
and Arbitration (CCMA) for conciliation. When c onciliation failed on 15 August
2025, the parties, in accordance with section 69 of the Labour Relations Act 1
(LRA), agreed to the Picketing Rules on the same day.
[4] These agreed Picketing Rules prohibit the striking employees from obstructing or
preventing members of the public, customers, employees or service providers from
entering or leaving the first applicant’ s premises . They also prevent the striking
employees from engaging in any unlawful, violent, intimidating, coercive,
threatening or assaultive behaviour. The parties agreed that picketing would take
place “in a public place outside the premises of the employer” within five meters of
the employer’s premises. The striking employees were to conduct themselves in a
peaceful, unarmed and lawful manner . They were allowed, inter alia, to approach
peaceful, unarmed and lawful manner . They were allowed, inter alia, to approach
1 Act 66 of 1995, as amended.
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the employer’s clients, customers, members of the public and other non- striking
employees within the designated area not to enter the premises in support of the
strike.
[5] The Picketing Rules also include a dispute resolution mechanism in terms of which
any dispute regarding the interpretation of the agreed rules or alleged breach
thereof shall be dealt with in accordance with the relevant provisions of section 69
of the LRA.
[6] Pursuant to the conclusion of the Picketing Rules, the respondents issued a notice
of intention to strike. The strike commenced on 21 August 2025. The legality of the
strike itself is not an issue before this Court. What is an issue, on the applicants’
version, is that the picketing w as characterised by acts of violence, including
assaults, intimidation and threats , which they contend breached the Picketing
Rules and amounted to unlawful conduct . The applicants rely on allegations of
unlawful conduct or misconduct between 21 August 2025 and 25 March 2026.
The August – December 2025 incidents
[7] The strike commenced on 21 August 2025. The applicants allege that the following
happened on 21 and 22 August 2025:
‘the picketers blocked Y […] Road from both directions, preventing commuters
and business vehicles from making use of the road. This occurred on two
occasions on the same day. On 22 August 2025, CHEP wrote to the 1st to 87th
respondents regarding the breach, demanding compliance with the Picketing
Rules and issuing an ultimatum.’
[8] The next incident occurred on 4 September 2025. It is recorded as follows in the
founding affidavit:
‘Three employees, Tshepo Ntsoane, Vincent Mashala, and Ignatius Pholoso,
reported receiving threats at their homes on 4 September 2025 from two men
who identified themselves as “Sakhile” and “GenjeGenje”. These men allegedly
stated that they had been paid by striking CHEP employees to warn the targeted
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employees not to report for duty during the strike. Each employee relayed these
threats to Operations Manager, Conty Thobejane, prompting concern about their
safety and the safety of other non-striking workers.
Later that evening, three additional employees, Immanuel Raphiri, Thapelo
Mohlatlole, and Taetjo Matshabaphala, were assaulted by a group of employees
and unknown individuals while walking to their workplace for the night shift .
Messrs Raphiri, Mohlatlole, and Matshabaphala suffered serious injuries, with
some losing personal belongings, and were subsequently located, taken for
medical treatment, and placed in alternative accommodation for their safety. The
assaults were reported to SAPS the following day, and the cases were
consolidated.’ (Own emphasis)
[9] The above incidents, the applicants argue, led to a decision to close the plant on 5
September 2025. The respondents continued to picket despite the plant closure.
[10] On or about 11 September 2025, the applicants applied for an urgent interim
interdict against the violence that allegedly continued at two of the first applicant’s
service centres in Samrand and Alrode. The respondents opposed the application
and disputed the allegations of violence in their answering aff idavit filed on 15
September 2025.
[11] On 16 September 2025, the applicants addressed a letter to the respondents’
attorneys accepting the “bona fides of your client’s denial of any involvement in the
alleged acts of intimidation and assault” and withdrawing the application with a
tender of the respondents’ wasted costs. However, they warned that any future
incidents of assault, intimidation, or breaches of the picketing rules would be
attributed to the respondents, and that they reserved the right to approach the
Court again on an urgent basis.
[12] The plant remained closed for the remainder of 2025. In December 2025, the
parties met before the CCMA for facilitation, but these efforts did not resolve the
parties met before the CCMA for facilitation, but these efforts did not resolve the
dispute. The applicants indicated their intention to re-open the plant on 5 January
2026.
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The January – March 2026 incidents
[13] A second “ wave” of alleged unlawful conduct occurred between January and
March 2026. The applicants alleged that the non-striking employees had reported
receiving threats of intimidation or violence if they returned to work on 5 January
2026.
[14] Conty Thobejane is the first applicant’s Operations Manager. He avers that on 13
January 2026, Sam Mbatha (Mbatha), a non-striking employee, informed him that
he received a telephone call from his wife that two unknown individuals attended
Mbatha’s place of residence, where they informed his wife that if Mbatha loved his
daughter, he must refrain from going to work.
[15] On 15 January 2026, Matsobane Magwete (Magwete) received a WhatsApp
message from an unknown mobile number registered under “Power to Workers”,
which contained information showing his place of residence, emojis depicting
blood and a firearm, and a message stating “keep on working, you will see”.
[16] On 16 February 2026, Simon Mangwale (Mangwale) and Richard Vusumzi
(Vusumzi) were allegedly assaulted by a group of about 14 employees from work
at Spar depot, Jet Park, on their way to their respective homes. Video footage was
produced, which shows a group of individuals approaching Mangwale. The
applicants allege that they observed S ifiso Kubheka, Bongile Madundulwana and
Innocent Simelane on video footage calling for more employees to join them .
Mangwale was then surrounded, chased across the road, tripped and assaulted.
In addition to the three respondents mentioned above, the applicants identified
eight more employees from the group that allegedly assaulted Mangwale, namely ,
Philani Manana, Wonder Simelane, Sphelelani Mavuso, Lindani Patrick Sangweni,
Tumelo Mahume, Zameko “Zakes” Ngobeni, Louis Patji and Alson Nxumalo.
Kubheka was accused of planning and orchestrating the assault, even though he
did not participate in the assault.
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[17] The group allegedly proceeded up the street, where the applicants allege that they
assaulted Vusumzi. Two pictures depicting injuries to the ear we re attached to the
founding affidavit. The applicants allege that these are injuries sustained by
Mangwale and Vusumzi. Vusumzi did not file a confirmatory affidavit.
[18] In response, t he deponent to the respondents’ answering affidavit, Brian Dlamini
(Dlamini), contends that he watched the video footage but was “unable to identify
any respondent, or any particular individual from the footage” . Mahume has
responded to the allegations and raised an alibi. He stated that he has been living
in Delareyville, North West Province, since 22 September 2025. These
respondents, except Mahume, have since been dismissed.
[19] The applicants further relied on several alleged incidents. First, an incident in
January 2026 where Alwyn Sekgobela employed at the RPC plant , allegedly
informed his manager, Cornelius Johannes Pieterse, of an incident that took place
at his place of residence, where a group of five unknown men spoke to his mother,
stating that he must stop working on the pallet side or there will be trouble.
Second, an incident involving a late Plant Manager who alleged ly communicated
to his manager, Ryan Drinkwater, that whilst onboard a staff taxi, a group of
unknown men approached the taxi passengers to enquire about his whereabouts,
but did not know what he looked like. Third, a voice note that circulated, which
allegedly stated that the striking employees’ organisation has sufficient funds to
sustain the strike, and that they could hire hitmen without hesitation if employees
are called back to work. Fourth, on 25 February 2026, Terence Magagula allegedly
informed Pieterse that a group of 10 men had gone to his address and told him
that they knew he was working during the strike. On 5 March 2026, Magagula
allegedly told Pieterse that five men came to his house looking for him.
allegedly told Pieterse that five men came to his house looking for him.
[20] On 25 March 2026, another incident allegedly occurred in which a group of
employees attempting to leave the RPC plant was stopped by two minibuses and
attacked by about 24 armed men with hammers, steel round bar s, golf clubs and
knives. Five employees, identified in the affidavit, allegedly sustained injuries and
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were taken away by the ambulance for treatment. Andile Khumalo, the deponent
to the founding affidavit , alleges that the employees who were attacked confirmed
to him that Dlamini was part of the group that assaulted them. It is common cause
that no confirmatory affidavits from these assaulted employees were filed.
[21] Dlamini denied the allegations , arguing that the allegations constitute hearsay
evidence and that at the time of the alleged incident, he was on his way from the
picketing area to his home.
[22] A video footage purportedly supporting the above allegations was produced in the
applicants’ replying affidavit. The replying affidavit identified four more
respondents, in addition to Dlamini, as having taken part in the assault. They are
Philani Manana, Innocent Simelane, Herold Mashale (Mashale) and Elias
Msimanga (Msimanga). It is common cause that Manana and Simelane were
identified as having participated in the 16 February 2026 assault. Mashale and
Msimanga are part of the respondents.
[23] The production of the video footage resulted in this Court granting a postponement
on 17 April 2026 to allow the respondents , particularly Dlamini and the other four
respondents above, to reply to the allegations in the replying affidavit and to the
video footage. 2 The five respondents filed their affidavits on 28 April 2026 and
applied for condonation. I have decided, in the interest of justice, to grant the
application. The respondents have also filed affidavits from other individuals,
outside the terms of the Court order of 17 April 2026, and without an application for
admission of additional or supplementary answering affidavit. These affidavits are
therefore not properly before the Court and are to be disregarded.
[24] In replying to the new allegations in the applicants’ replying affidavit and video
footage, Dlamini maintained that the allegation s relating to the 25 March 2026
incident were based on hearsay, as no witnesses had confirmed them. He
incident were based on hearsay, as no witnesses had confirmed them. He
2 The respondents did not object to the production of new evidence in the replying affidavit and instead
sought a postponement to answer to those allegations. On this basis, the applicants submitted that these
allegations were accepted into evidence on 17 April 2026. No objection or opposition was raised by the
respondents.
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reiterated his denial of any involvement and stated that neither he nor any of the
other respondents could be identified in the footage. Dlamini further argued that
the applicants had failed to reliably identify any individuals from the video. He
pointed out the inconsistencies between those named in the applicants’ affidavits
and those who were issued with disciplinary notices, suggesting that the
applicants’ version was unreliable. According to him, the fact that the respondents
identified in the replying affidavits had not been charged, but other individuals not
mentioned were charged, is proof that the applicants failed to link the identified
respondents to the assaults. He continued:
‘Having read Mr Khumalo's replying affidavit, and having watched the CCTV
footage annexed thereto, I want to go further, and deny that any of the
respondents participated in or had any knowledge of the events captured in said
footage.
I am unable to identify any respondents from the footage provided.
The four respondents whom Mr Khumalo identifies by name in his replying affidavit
(being Philani Manana, Innocent Simelane, Herold Mashale and Elias Msimanga)
were not involved in the incident and do not have any knowledge thereof.’
[25] Manana, Innocent Simelane, Mashale and Msimanga each confirm Dlamini’s
allegations inter alia that they were not involved in the incident and do not have
knowledge of the assaults. According to each of the four respondents’ affidavits, at
the time of the incident, Manana and Mashale were at their respective homes, and
Innocent Simelane and Msimanga were at the Germiston train station travelling to
Katlehong.
Analysis
The relief sought
[26] In terms of paragraphs 2 and 3 of the notice of motion, the applicants seek an
order that the 87 respondents have breached the Picketing Rules and their
“conduct … in assaulting and threatening to assault employees of the applicants
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as a means of promoting, encouraging, supporting and participating in the strike is
unlawful and not in compliance with Chapter IV of the Labour Relations Act ”. The
upshot of the relief sought is that it must be declared that the 87 respondents
committed unlawful conduct and are in breach of the Picketing Rules.
[27] Paragraphs 4 and 6 of the notice of motion seek to interdict the 87 respondents
from picketing and from “calling for, orchestrating, participating in or encouraging
in any way the picket, or any conduct in contemplation or in furtherance of the
picket”. Paragraph 5 seeks to interdict them from engaging in acts of violence,
intimidation, harassment, threats , obstruction of access to the plant , or any
unlawful conduct during the strike.
Jurisdiction to interdict picketing
[28] The respondents contend that this Court has no jurisdiction to entertain the
application insofar as it seeks to interdict a picket. For this argument, the
respondents rely on the Picketing Rules and section 69(8)-(11) of the LRA. They
also relied on the Constitutional Court judgment of National Union of Metalworkers
of SA v Intervalve (Pty) Ltd and others
3 (Intervalve), which endorsed the LAC
decision in National Union of Metalworkers of SA and others v Driveline
Technologies (Pty) Ltd and another
4 (Driveline). These two judgments, decided in
the context of an unfair dismissal dispute, held that a referral of the unfair
dismissal dispute for conciliation is a precondition for this Court’s jurisdiction.
[29] The parties agreed, per the Picketing Rules, that any dispute about alleged breach
of the rules “shall be dealt with in accordance with section 69 (8), (9), (10) and (11)
of the LRA”. Section 69(8) provides that any of the parties may refer a dispute to
the CCMA, inter alia, regarding an alleged material breach of the agreed picketing
rules. Subsections (9) to (11) deal with the referral of the dispute. Subsection (10)
rules. Subsections (9) to (11) deal with the referral of the dispute. Subsection (10)
obliges the CCMA to attempt to resolve the dispute through conciliation. In terms
of subsection (11), if the dispute remains unresolved at conciliation, any party to
3 (2015) 36 ILJ 363 (CC).
4 2000 (4) SA 645 (LAC); (2000) 21 ILJ 142 (LAC).
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the dispute may refer it to this Court for adjudication. The parties’ Picketing Rules,
however, provided for an alternative dispute resolution. Clause 6.2 records that:
‘Any party to this agreement may request an urgent arbitration before referring
the matter to the Labour Court in terms of section 69(11) of the LRA.’
[30] Subsection (12) provides that:
‘(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 a 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 locations designated in the
collective agreement, agreed rules contemplated in subsection (4) or rules
determined by the Commission.’
[31] The applicants have not explained why the dispute could not be referred to the
CCMA for conciliation and/or “urgent arbitration” per the agreed Picketing Rules.
Whilst the provision may not necessarily oust this Court’s jurisdiction, section
68(12) presents a bigger challenge for the applicants’ pursuit of interdicting the
picket. A dispute about a material breach of picketing rules must be referred to the
CCMA for conciliation. Conciliation is not optional. In the absence of a legally
prescribed referral for conciliation, this Court lacks jurisdiction to entertain the
application.
[32] Considering the provisions of section 68(12), it is evident that the LRA provides no
other avenue for any of the parties to approach this Court for a final interdictory
relief.
5 This Court’s interdictory powers are limited to granting interim relief to
5 See Makhado at para 13.
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compel compliance with the rules, or vary the rules, or suspend a picket. The
applicants did not refer a dispute about an alleged material breach of the Picketing
Rules for conciliation. For the above reasons, prayers 2, 5 and 6 of the notice of
motion cannot be competently granted, at least in t he terms formulated – final
interdict.
[33] Even if I am wrong and the Court has jurisdiction, the applicants have failed to
make out a case of widespread unlawful conduct to warrant interdicting the picket.
The relief sought by the applicants to interdict and restrain the respondents from
picketing is a drastic order that , if granted, will fundamentally undermine and
debase the respondents’ right to strike. It requires the respondents to be on strike
but not gather at their workplace or within five metres from the premises per the
agreed Picketing Rules. In my view, retaining the right to strike without the
corresponding right to picket is tantamount to a voice without the breath to speak ;
it would render the respondent s’ primary tool of collective bargaining ineffective
and would, in effect, constitute an interdict against an otherwise protected strike.
For these reasons, I would refuse the application even if the Court had jurisdiction.
Unlawful conduct interdict: Legal principles
[34] The applicant s seek a final interdict. Therefore, they must meet the three
requirements for a final interdict, viz , clear right, injury committed or reasonably
apprehended and absence of adequate alternative remedy.
6 Where disputes of
facts arise, they are to be resolved in accordance with the Plascon-Evans
principle7.
[35] More than two and a half decades ago, Brassey AJ noted in Polyoak (Pty) Ltd v
Chemical Workers Industrial Union & others 8 (Polyoak) that employers often bring
urgent applications to interdict misconduct against all striking employees , even
6 Setlogelo v Setlogelo 1914 AD 221 at 227.
6 Setlogelo v Setlogelo 1914 AD 221 at 227.
7 Plascon-Evans Paints Ltd v Van Riebe eck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at
634E – 645D.
8 (1999) 20 ILJ 392 (LC).
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where unlawful conduct is attributable to a portion of the employees . The Court
held that:
‘Generally speaking, a person can only be restrained by interdict if the evidence
demonstrates that, as a matter of probability, he or she will commit the act in
question within the period encompassed by the proposed order. The conclusion
is competent when the evidence shows that person has undertaken or agreed to
commit the act or that an inference to this effect can be drawn from the fact that
he or she has previously done so. In the absence of evidence identifying the
respondent as a prospective perpetrator or accomplice in the acts of a
perpetrator, however, he or she cannot be interdicted, and it matters not that the
person is one of a group of strikers containing malefactors or that his or her
interests as striker happen to be promoted by the wrongdoing in question. Our
law knows no concept of collective guilt.’
[36] Brassey AJ further cautioned against overly broad interdict, where employers
frequently seek protection from a range of acts going beyond those of which they
complain, and also, where employers seek “an open-ended [prayer], that is, one
that binds the respondents for a period whose duration is indefinite and potentially
unlimited”. The Court emphasised that an interdict can be granted only to restrain
misconduct that is likely to occur in the future, that the “period during which this is
likely to happen is a question of fact, but it will rarely, if ever, be indefinite” and that
this period “will normally last for no longer than the motive for wrongdoing remains
alive - typically, within this context, the duration of the strike plus the time it
thereafter takes for life to return to normal ”. This “unlimited operation of a sword of
Damocles”, so Brassey AJ cautioned further, is undesirable and legally wrong.
[37] In Makhado Municipality v SA Municipal Workers Union 9 (Makhado), this Court
[37] In Makhado Municipality v SA Municipal Workers Union 9 (Makhado), this Court
was critical of employers who seek interdicts against unidentified and faceless
groups. The Court held that:
‘Throughout the applicant’s founding affidavit, no attempt is made to identify any
act of any particular individual (save in two instances dealt with below). The
9 (2006) 27 ILJ 1175 (LC); 2006 JOL 17074 (LC).
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second and further respondents are referred to throughout as ‘the strikers’, the
‘crowd’, or a ‘mob of strikers ’. Not even the strike committee is pertinently
identified by name, let alone alleged conduct, save for the second applicant.
The Labour Court has previously warned that it will not grant relief against
unidentified members of a faceless crowd, unless a proper basis is laid therefor.
No such attempt is made in the founding, or even the replying papers in this
regard.’10
[38] The Constitutional Court i n Commercial Stevedoring Agricultural & Allied Workers
Union and others v Oak Valley Estates (Pty) Ltd and another 11 (Oak Valley)
reaffirmed the principles in the two judgments above. It stressed that the purpose
of an interdict is to protect an applicant against actual or threatened unlawful
conduct by identifiable indiv iduals. Accordingly, an applicant for a final interdict
must show, applying the Plascon -Evans principle, that “unless restrained by an
interdict, the respondent will continue committing an injury against the applicant or
that it is reasonably apprehended that the respondent will cause such an injury” .12
Without evidence linking the individual respondent to the alleged unlawful conduct,
any apprehension of harm cannot be considered reasonable .13 The Court
continued:
‘[42] Two important principles can be distilled from this court’s jurisprudence, and
this line of cases. First, mere participation in a strike, protest, or assembly, in
which there is unlawful conduct, is insufficient to link the impugned respondent to
the unlawful conduct in the manner required for interdictory relief to be granted.
Second, the necessary link can however be established where the protesters or
strikers commit the impugned unlawful conduct as a cohesive group. Whether
this is established will, of course, turn on the particular facts of the case. Where,
for instance, unlawful conduct during protest action is ongoing, widespread, and
for instance, unlawful conduct during protest action is ongoing, widespread, and
manifest, individual protesters or strikers will usually have to disassociate
themselves from the conduct, to escape the inference that it is reasonably
10 Makhado at para 18 – 19.
11 [2022] 6 BLLR 487 (CC); (2022) 43 ILJ 1241 (CC).
12 Oak Valley at para 19.
13 Oak Valley at para 20.
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apprehended that they will cause injury to the applicant. By contrast, where a
protest or strike is substantially peaceful, but there are isolated and sporadic
instances of unlawful conduct, only those protesters who associate with those
acts of unlawfulness can permissibly be placed under interdict. In addition, where
a strike is beset by unlawful conduct and large numbers of protesters or strikers
deliberately conceal their identities - for instance, through the wearing of masks -
a court may be entitled to more readily conclude that an applicant has a
reasonable apprehension that the participants in the strike will cause it injury.
…
[44] The requirement of a link, which has, save for a few instances, been
consistently applied by our courts, appropriately balances these conflicting
interests. On the one hand, it ensures that interdicts are not granted
indiscriminately. On the other, it affords employers the required measure of
protection. The requirement does not entail that an employer must lead direct
evidence establishing conclusively that the interdicted employee was responsible
for specific unlawful conduct. The employer could disc harge its onus by putting
up facts from which an inference can be drawn that it is more probable than not
that the employee herself engaged in unlawful conduct or associated herself with
it.
[45] As the High Court noted in Mondi Paper , ‘the production of proper proof
either directly or by circumstantial evidence is not beyond the ingenuities of
employers, given the modern technology that is available’ to them. Likewise,
in Durban University of Technology, the High Court remarked that –
‘with the modern methods of access control, CCTV cameras, etc, there is ample
opportunity for the applicant’s security services to be able to identify those
persons who were on the campus when the violence occurred, and steps could
be taken to identify them’.’ (Own emphasis)
be taken to identify them’.’ (Own emphasis)
Did the respondents commit unlawful conduct and/or associate with unlawful conduct?
[39] To succeed, the applicants must establish a factual link between the individual
respondent and the alleged unlawful conduct, whether actual or threatened. Mere
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participation in a strike, protest or picket in which there is unlawful conduct is not
sufficient to link the impugned individual respondent to such unlawful conduct. A
link may be established between an individual respondent and unlawful conduct
where a cohesive group, including that individual, commits misconduct.
[40] Further, where there is widespread unlawful conduct during the strike, the
evidentiary burden may shift to the individual respondent to dissociate from
unlawful conduct, failing which an inference of association may justifiably be made.
By contrast, if the strike is largely peaceful, with isolated or sporadic acts of
unlawful conduct, the applicant employer must establish that the individual
respondent either personally engaged in unlawful conduct or associated
themselves with unlawful conduct. Ultimately, in motion proceedings, the applicant
bears the onus to plead facts from which an inference can be drawn that , on a
balance of probabilities, the individual respondent participat ed in or associated
with unlawful conduct.
[41] In this matter, the applicants made numerous unsubstantiated allegations and
sought to rely on hearsay and even second-hand hearsay evidence to prove that
the respondents committed or associated themselves with unlawful conduct.
[42] The August and September 2025 incidents, which formed the basis of an earlier
withdrawn urgent application, constitute inadmissible hearsay. The same applies
to allegations of unlawful conduct post -September 2025 until January 2026. It is
unnecessary to revisit all these allegations made in the founding affidavit, which I
have covered above. There was no application to admit this hearsay evidence.
This evidence cannot be considered and must be disregarded entirely.
[43] Accordingly, the Court will confine its analysis to the incidents of 16 February 2026
(excluding the alleged assault on Vusumuzi, which is also hearsay) and 25 March
2026.
16 February 2026 incident
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[44] The applicant s produced video footage depicting the assault on Mangw ale. The
footage shows three individuals approaching him at approximately 17h42, after
which he attempts to move away and avoid them. Shortly thereafter, Mangwale is
seen trying to flee as about four individuals pursue him. He is tripped and
assaulted by a group, with additional individuals crossing the road and joining in
the attack.
[45] Paragraph 63 of the applicants ’ founding affidavit identifie d and named 11
individual respondents as having participated in the assault . These individuals ’
names also appear in paragraph 16 above.
[46] The denial by Dlamini, who claimed that he could not identify any of the individuals
from the video footage who assaulted Mangwale, is unconvincing, implausible and
is rejected. Damini’s argument that the evidence i s hearsay, or that identification
from the footage was impossible, is evasive and fails to engage meaningfully with
the specific allegations made against the 10 respondents and is similarly rejected.
[47] Dlamini’s version certainly does not constitute the 10 respondents’ version. Each
of these identified respondents was required to file an affidavit responding to the
allegations against them. Their failure to do so, in the face of the video evidence
and the specific allegations placing them at the scene, left the applicants’ version
uncontested. Accordingly, I accept that these 10 respondents were present and
either actively participated in the assault or associated themselves with it. Even if
the specific role of each respondent was not detailed, the evidence is, in my view,
sufficient to support the inference, on a balance of probabilities, that they were
involved in unlawful conduct against Mangwale.
[48] The applicants have made out a case against these 10 respondents. However, the
same cannot be said about the 7 7 remaining respondents. On the applicants’
version, there was a group of only about 22 individuals, some of whom did not
version, there was a group of only about 22 individuals, some of whom did not
pursue Mangwale nor cross the road. These could have been individuals who do
not work for the respondents. The 77 respondents could not be said to have been
aware of the assault. There is no shred of evidence that they were aware of the
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assault that could trigger an enquiry into whether they associated themselves with
the assault or not. In the circumstances, the applicants are entitled to an order in
terms of p aragraph 3 of the notice of motion, only against the 10 respondents
mentioned in paragraph 63 of the founding affidavit.
25 March 2026 incident
[49] On 25 March 2026, the applicants allege that a group of 14 employees was
blocked by two minibuses while trying to leave the RPC plant. About 24 men
allegedly exited the two minibus es and assaulted the employees with hammers,
steel round bar, gold clubs and knives. Five employees allegedly sustained injuries
and were taken away by the ambulance for treatment. The five injured employees
allegedly informed Khumalo that Dlamini was involved. Further, in terms of the
replying affidavit, four additional respondent s, Manana, Innocent Simelane,
Mashale and Msimanga, were identified as having participated in the assault.
[50] While the footage shows individuals emerging from the minibuses and attacking
people in the street, and the applicants named those who sustained injuries, they
failed to establish that the injured were their employees or to link the incident to the
ongoing strike because t he five injured individuals did not file confirmatory
affidavits to confirm the allegations of assault and injury against them. This leaves
the applicants with the footage as their best evidence. None of the individual
respondents have been described. There is no evidence relating to how they were
dressed and their specific participation and/or involvement in the assault.
[51] Moreover, Dlamini, Manana, Simelane, Mashale and Msimanga have all denied
involvement in the assault and raised alibi defenses. They were either at home or
at the train station. The applicants did not provide sufficient detail from the video
footage to identify these individuals reliably - for example, by describing their
footage to identify these individuals reliably - for example, by describing their
clothing, or specifying the acts attributed to each respondent. Applying the
Plascon-Evans principle, the five respondents’ version is accepted and their
defence is upheld. Consequently, the applicants failed to prove that these
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respondents engaged in unlawful conduct or associated themselves with it in
relation to this incident.
Appropriate relief
[52] The applicants have succeeded in establishing unlawful conduct against the 10
individual respondents in relation to the incident of 16 February 20 26. These
respondents’ conduct must therefore be declared unlawful. For the remaining
respondents, the application must be dismissed.
[53] The next issue is whether the 10 respondents should be interdicted and restrained
from engaging in unlawful conduct. At the heart of this enquiry is the protection of
the applicant s from continuous actual or threatened unlawful conduct. The
applicants must show that, unless restrained by an interdict, these 10 respondents
will continue committing unlawful conduct against the applicants or that such
unlawful conduct is reasonably apprehended.
14
[54] It is common cause that these 10 respondents were dismissed on 7 April 2026.
The parties are ad idem that the respondents’ dismissal does not affect the
jurisdiction of this Court to deal with the matter between the dismissed
respondents and the applicants.15
[55] Relying on Sibanye Rustenburg Platinum Mines (Pty) Ltd v AMCU and Others 16,
the respondents argued that since these 10 respondents are no longer employees,
they are therefore not entitled to participate in the strike. The respondents also
relied on two further judgments of this Court. First, Contracta Force Corporate
Solutions (Pty) Ltd v National Union of Public Service and Allied Workers Union
and Others 17, where the Court held that because the employees had been
dismissed and their strike ceased as a result, they are “in no position to commit
14 Oak Valley at para 19.
15 See Picardi Hotels Ltd v FGWU & others [1999] 6 BLLR 601 (LC), where this Court referred to the fact
that the definition of strike refers to refusal to work “by persons who are or have been employed by the
same employer or by different employers…” .
same employer or by different employers…” .
16 (2025/212826) [2025] ZALCJHB 557 (18 November 2025).
17 (2023) 44 ILJ 558 (LC).
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any acts against the applicant in their capacity as employees” . Second, Tharisa
Minerals (Pty) Ltd v National Union of Mineworkers and Others 18, where the Court
held that:
‘With the strike action having ceased and some of the employees already
dismissed, the confirmation of the rule nisi will not serve any purpose.’
[56] To the extent that the above cases suggest a general proposition that there can be
no reasonable apprehension of harm simply by virtue of the dismissal and/or
cessation of a strike, I am unable to agree with the proposition, as that will depart
from the established legal principle and requirements for a final interdict . That
would suggest that even when the employer can establish that the respondents
will or are likely to cause harm, the final interdict must be refused solely because
they are no longer employees and cannot legally participate in the strike. That they
are not entitled in law to strike does not automatically mean that they may not
cause harm to the applicants. Whilst the dismissal of the employees and the
cessation of the strike are relevant and important factors in the enquiry , they are
not conclusive. The question is not whether the individual respondents are still
capable of striking or picketing as employees , but whether the applicant s
reasonably apprehend that they will or are likely to cause harm.
[57] In casu, t he applicants rel ied on the founding affidavit, which was deposed to
before the dismissal of the 10 respondents. The replying affidavit takes the issue
against the 10 respondents no further. As I have already found, there is no
evidence of widespread unlawful conduct. The fact that the strike is ongoing is not
sufficient to establish a reasonable apprehension that the 10 respondents will
continue to cause harm. Moreover, there was no indication of any further unlawful
conduct by these individuals after the 16 February incident and up to the launch of
conduct by these individuals after the 16 February incident and up to the launch of
the application (a period of seven weeks) , or thereafter. The applicants did not
supplement their papers to explain why they continued to fear harm from these
18 (2025/051769) [2025] ZALCJHB 344 (4 August 2025).
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respondents following their dismissal. Consequently, there is no basis for this
Court to grant a final interdict against the 10 respondents.
[58] In the premises, the following order is made:
Order
1. The Court has no jurisdiction to issue a final interdict against a picket.
2. It is declared that the conduct of the respondents listed in paragraph 63 of
the applicants’ founding affidavit (excluding Tumelo Mahume) , on 16
February 2026, was unlawful.
3. Subject to paragraph 2 above, the application is dismissed.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicants: Mr L. Frahm-Arp
c/o Fasken
For the 1st – 87th Respondents: Ms N. Lewis
Instructed by: Lawyers for Human Rights