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[2012] ZACC 19
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South African Transport and Allied Workers Union (SATAWU) and Others v Moloto NO and Another (CCT128/11) [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC); [2012] 12 BLLR 1193 (CC); (2012) 33 ILJ 2549 (CC) (21 September 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 128/11
[2012] ZACC 19
In the matter between:
SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION (SATAWU)
................................................................
First
Applicant
DUMISANI JAMA AND 62 OTHERS
.......................
Second to Sixty-Fourth Applicants
and
LEBOGANG MICHAEL MOLOTO N.O.
...............................................
First
Respondent
JERRY SEKETE KOKA N.O.
.............................................................
Second
Respondent
Heard on : 10 May 2012
Decided on : 21 September 2012
JUDGMENT
MAYA AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring):
Introduction
This
application mainly concerns the interpretation of section 64(1)(b)
of the Labour Relations Act 66 of 1995 (Act).
1
The applicants seek leave to appeal against the judgment of the
Supreme Court of Appeal in
Equity Aviation Services (Pty) Ltd v
South African Transport and Allied Workers Union and Others
,
2
which construed the provisions of section 64(1)(b) of the Act as
obliging every employee who intends to embark on a strike
to notify
his or her employer of that intention personally or through a
representative for the strike action to be protected.
3
This interpretation founded the Court’s conclusion that the
dismissal of the second to sixty-fourth applicants (dismissed

strikers) from employment, consequent upon their participation in a
strike in respect of which only the first applicant (SATAWU)
had
given notice on behalf of its members, was lawful.
Background
The
facts are simple and largely undisputed. The dismissed strikers are
former employees of Equity Aviation Services (Pty) Ltd
(Equity), an
aviation logistics company which is under liquidation. The
respondents are Equity’s liquidators. At the
material time,
Equity provided services on the ramps and runways of the country’s
six major airports. Of its 1157 permanent
employees, 725 were
members of SATAWU, a registered trade union. Thus, SATAWU was the
recognised majority union at Equity’s
workplace. The
dismissed strikers were not SATAWU members.
On
13 November 2003, SATAWU referred a wage dispute to the Commission
for Conciliation, Mediation and Arbitration (CCMA) for

conciliation. Conciliation failed. On 15 December 2003, the CCMA
issued a certificate to that effect. On the same day SATAWU
issued
a terse strike notice to Equity. It is common cause that the notice
which was written on SATAWU’s letterhead referred
only to the
union’s members, which read:
“
We
intend to embark on strike action on 18 December 2003 at 08H00.
Please confirm that we will meet to discuss a Picketing Agreement
on
the 17 December 2003.”
None of
the dismissed strikers, or anyone acting on their behalf, issued a
separate strike notice to Equity. Equity had been assured
by
minority trade unions at its workplace that they, the minority
unions, were not party to the dispute.
SATAWU
members commenced the strike as planned. It lasted until
15 April 2004. Equity accepted that their strike action

was “protected” because SATAWU had given the requisite
notice on their behalf. The dismissed strikers also partook
in the
strike despite Equity’s repeated warnings to them to return
to work as it considered their participation in the
strike action
unlawful for lack of a strike action notice. As a result, on 19
November 2004 Equity dismissed them for unauthorised
absence from
work during the strike.
Litigation
history
The
dismissed strikers referred a dispute to the CCMA challenging the
lawfulness of their dismissal. When conciliation did not
succeed,
they took the dispute to the Labour Court on the basis that their
dismissal was automatically unfair in terms of section
187(1)(a) of
the Act.
4
On 15 June 2006, Ngcamu AJ decided the matter in favour of the
dismissed strikers.
5
He found that they were covered by SATAWU’s strike notice as
they were its affiliates
6
and that, in any event, non-membership would not have excluded them
from its protection. The Court then declared the termination
of
their employment automatically unfair and ordered their
reinstatement and ancillary relief.
Equity’s
appeal against this decision was dismissed by a split Labour Appeal
Court.
7
The majority held that section 64 of the Act entitles all employees
in a bargaining unit, whether unionised or non-unionised,
lawfully
to participate in strike action if the majority union has referred
the dispute for conciliation in terms of subsection (1)(a)
and
subsequently issued a strike notice in terms of subsection (1)(b).
According to the majority, it was unnecessary for the
dismissed
strikers to issue a strike notice when SATAWU had done so. The
majority, therefore, concluded that the dismissed
strikers’
participation in the strike was lawful and their dismissal
automatically unfair.
The
minority took a different view and found merit in the appeal. It
reasoned that an employer relies largely on the contents
of the
strike notice to decide whether to resist or yield to the
employees’ demands and to make the necessary arrangements
to
minimise the impact of the strike on its business should the strike
go ahead. This, therefore, makes it essential for employees
who are
not members of a trade union, which has given the strike notice, to
issue a separate notice to strike lawfully. The
minority concluded
that the majority’s interpretation of section 64(1)(b), which
renders it impossible for an employer
to identify the employees who
may strike, conflicts with the injunction in section 3 of the Act
as it would promote disorderly
collective bargaining.
Equity’s
further appeal to the Supreme Court of Appeal, brought with that
Court’s special leave, was successful.
8
Lewis JA, writing for a unanimous Court, agreed with the Labour
Appeal Court minority’s interpretation of section 64(1)(b).

The Court held that the purpose of the strike notice is to warn an
employer of the impending power play to enable it to make
informed
decisions. The Court reckoned that in light of the Act’s aim,
amongst others, to promote orderly collective
bargaining, a
logical, purposive interpretation of the section required the
dismissed strikers to notify Equity of their intention
to strike
personally or through their representative to give effect to that
objective. Thus, the dismissed strikers could not
rely on SATAWU’s
notice because it covered only the union’s members. The Court
concluded that the dismissed strikers’
participation in the
strike was not protected under the Act and that their dismissal was
not automatically unfair.
Leave
to appeal
The
respondents oppose the merits of the appeal only and abide this
Court’s decision with regard to the application for
leave to
appeal. But to succeed, the applicants must still show that the
application raises a constitutional matter and that
it is in the
interests of justice to grant leave to appeal.
The
main contention against the decision of the Supreme Court of Appeal
is that the meaning it ascribed to section 64(1)(b)
is wrong as it
conflicts with the express language used by the Legislature and
unjustifiably curtails the constitutional right
to strike conferred
on all workers by section 23 of the Constitution.
9
This argument undoubtedly raises a constitutional question as it
relates to the proper interpretation and application of the

provisions of the Act which was enacted to give effect to the
fundamental right to strike, among other objects.
10
This Court may thus adjudicate the application in terms of section
167(3)(b) of the Constitution.
11
It
must next be determined whether it is in the interests of justice
that leave to appeal be granted. Some of the factors that
are
important in deciding this question are the importance of the
constitutional issues raised and the prospects of success
of the
appeal. The central issue raised here, as indicated, relates to the
meaning and effect of the procedural requirements
contained in
section 64(1)(b) on the constitutional right to strike. Its
importance is unquestionable. This is especially so
in view of the
fact that the decision of the Supreme Court of Appeal will affect
every strike arising where strike notice following
unsuccessful
conciliation is given to the employer by a trade union to which not
all the striking employees are affiliated.
Regarding the prospects
of success on appeal, the fact that this is an interpretive enquiry
involving statutory provisions,
which do not, on the face of it,
specify who must issue the strike notice, and the Labour Appeal
Court’s disagreement
on the proper construction of these
provisions, suggest that there may be prospects of success.
I am
satisfied in the circumstances that it is in the interests of
justice to grant leave to appeal.
Appeal
The
fundamental question in the appeal is whether the dismissed
strikers met the provisions of section 64(1)(b) of the Act by

engaging in a strike when only SATAWU issued a strike notice on
behalf of its members.
Applicable
law
The
relevant provision of the Constitution is section 23(2)(c) which,
as mentioned earlier, grants every employee the right
to strike.
The right, which is granted without any express limitation in the
Constitution, is given content and regulated by
the Act in
fulfilment of one of its primary objects.
12
To that end, the Act provides
13
substantive limitations
14
and procedural pre-conditions for the exercise of the right to
strike and the employer’s corresponding recourse to lock-out.
Section
64 reads in relevant part:
“
(1)
Every employee has the right to strike and every employer has
recourse to lock-out if—
(a) the issue in dispute has
been referred to a council or to the Commission as required by this
Act, and—
(i) a certificate stating that
the dispute remains unresolved has been issued; or
(ii) a period of 30 days, or
any extension of that period agreed to between the parties to the
dispute, has elapsed since the
referral was received by the council
or the Commission; and after that—
(b) in the case of a proposed
strike, at least 48 hours’ notice of the commencement of the
strike, in writing, has been
given to the employer, unless—
(i) the issue in dispute
relates to a collective agreement to be concluded in a council, in
which case, notice must have been
given to that council; or
(ii) the employer is a member
of an employers’ organisation that is a party to the dispute,
in which case, notice must have
been given to that employers’
organisation; or
(c) in the case of a proposed
lock-out, at least 48 hours’ notice of the commencement of the
lock-out, in writing, has been
given to any trade union that is a
party to the dispute, or, if there is no such trade union, to the
employees, unless the issue
in dispute relates to a collective
agreement to be concluded in a council, in which case, notice must
have been given to that
council; or
(d) in the case of a proposed
strike or lock-out where the State is the employer, at least seven
days’ notice of the commencement
of the strike or lock-out has
been given to the parties contemplated in paragraphs (b) and (c).”
(Emphasis omitted.)
Other
relevant provisions are found in section 67 of the Act which, in
addition to defining “protected strike” and
“protected
lock-out”, provides various forms of immunity for
participation in these actions where the relevant
requirements have
been met. Protection for strikers cuts across a wide spectrum and
ranges from delictual and contractual immunity
to protection from
dismissal, barring fair dismissal for misconduct or operational
reasons, and immunity from criminal prosecution
for contravention
of the Basic Conditions of Employment Act
15
or the Wage Act.
16
The consequences of non-compliance with the requirements of
“protected” industrial action, which include the grant

of an interdict against the action and payment of compensation for
loss attributable to the action, are contained in section
68 of the
Act.
The
submissions
The
essence of the applicants’ case is that the language used by
the Legislature expressly requires only notice of the
commencement
of the strike to be given to the employer by “anyone involved
in the dispute”, and does not oblige
every participating
employee to issue the notice to exercise the right to strike. This
construction, they argued, is consistent
with the Constitution and
the purpose of the Act. Requiring more would give the employer an
unfair advantage in the power-play
and undermine the right to
strike and effective resolution of labour disputes contemplated by
the Act.
The
respondents, on the other hand, contended for a purposive
interpretation of the provisions. They argued that in order to

serve any purpose at all, the notice must be issued by, or on
behalf of, the parties who intend to strike. This approach, they

submitted, promotes orderly collective bargaining, one of the Act’s
key objects, as it enables the employer to reasonably
determine the
extent of and properly prepare for the looming strike.
Approach
to interpretation
The
approach to be adopted in determining the meaning of these
provisions, and indeed the whole statute, is stipulated by the
Act
itself. In section 3, the Act expressly enjoins any person applying
its provisions to interpret them in a manner that gives
effect to
its primary objects, in compliance with the Constitution and the
public international law obligations of the Republic.
17
This Court highlighted the significance of the Act’s primary
objects in
Chirwa v Transnet Limited and Others
.
18
The Court remarked that the injunction in section 3 indicates that
they are not just textual aids to be employed where the
language
used by the Legislature is ambiguous. Rather, the objects of the
Act—
“
must
inform the interpretive process and the provisions of the LRA must
be read in the light of its objects. Thus where a provision
of the
LRA is capable of more than one plausible interpretation, one which
advances the objects of the LRA and the other which
does not, a
court must prefer the one which will effectuate the primary objects
of the LRA.”
Thus,
the provisions of the Act must be interpreted purposively so as to
give effect to the Constitution,
19
the objects of the Act itself and the purpose of the provisions in
issue.
20
But, this approach does not necessarily equate to an expansive
construction of the provisions of the Act. This is so because
the
purpose of the Act may well require a restrictive interpretation of
the particular provisions
21
so that the exercise of a protected right is not unduly limited.
Therefore, due regard must be had to the express language
used in
the provisions under consideration. Furthermore, care must be taken
against unduly limiting a fundamental right which
has been
conferred (as in this case) without express limitation by reading
implied restrictions into it.
22
The
Act sets out its primary objects and overall purpose in section 1
which reads:
“
The
purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act which are—
(a) to give effect to and
regulate the fundamental rights conferred by section 27 of the
Constitution;
(b) to give effect to
obligations incurred by the Republic as a member state of the
International Labour Organisation;
(c) to provide a framework
within which employees and their trade unions, employers and
employers’ organisations can—
(i) collectively bargain to
determine wages, terms and conditions of employment and other
matters of mutual interest; and
(ii) formulate industrial
policy; and
(d) to promote—
(i) orderly collective
bargaining;
(ii) collective bargaining at
sectoral level;
(iii) employee participation in
decision-making in the workplace; and
(iv) the effective resolution
of labour disputes.”
23
The
primary task in this case, then, is to interpret section 64(1)(b)
within the objects of the statute as a whole, having regard
to the
express wording of the provision and its specific purpose, bearing
in mind that it regulates a fundamental right.
Purpose
of the strike notice
Our
courts have considered the meaning of section 64(1)(b), albeit in
different contexts, and defined it by adopting a purposive
approach
towards its interpretation. One of the relevant cases is
Ceramic
Industries
24
upon which the Supreme Court of Appeal relied significantly for its
decision. There, the Labour Appeal Court dealt with the
provisions
in the context of a strike notice which did not state the exact
time of commencement of the proposed strike. The
Court exhorted an
interpretation of section 64(1)(b) that “gives best effect to
the primary objects of the Act and its
own specific purpose . . .
within the constraints of the language used in the section”,
reasoning thus:
“
Section
64(1)(a) sets out the first requirement to be met before embarking
on a protected strike viz an attempted conciliation
of the issue in
dispute before collective action is taken. Section 64(1)(b) sets out
the next requirement: notice of the proposed
strike to the employer.
Its purpose is to warn the employer of collective action, in the
form of a strike, and when it is going
to happen, so that the
employer may deal with that situation. By their very nature strikes
are disruptive, primarily to the employer,
but also to employees
and, sometimes, to the public at large. One of the primary objects
of the Act is to promote orderly collective
bargaining. Section
64(1)(b) assists in that orderly process. A failure to give proper
warning of the impending strike may undermine
that orderliness. This
might, in turn, frustrate labour peace and economic development,
other important purposes of the Act .
. . .
The specific purpose of warning
employers of a proposed strike may have at least two consequences
for the employer. The employer
may either decide to prevent the
intended power play by giving in to the employee demands, or, may
take other steps to protect
the business when the strike starts. . .
. [A] minimum period of 48 hours is given to deliberate on whether
to accede to the
demands or not. . . . The language and purpose of
section 64(1)(b) require that a specific time for the commencement
of the proposed
strike be set out in the written notice.”
Subsequently,
the Labour Appeal Court reiterated that courts should not employ a
technical approach in determining non-compliance
with section
64(1)(b).
25
The approach has since been expanded beyond the time provision,
26
to establish generally, as did the judgment of the Supreme Court of
Appeal, that the strike notice is more than a mere trigger
for the
48-hour window period that precedes the commencement of a strike,
but rather a mechanism meant to enable an employer
to prepare
properly for the impending power play.
This
view seems harmonious with the description of the notice’s
purpose advanced by authors Helen Seady and Clive Thompson,
27
who explain it as follows:
“
The
purpose of the [strike] notice would seem to be four-fold:
settlement brinksmanship. The
notice tells the other party that words are about to escalate into
deeds, and by that token offers
a last-gasp and pressure-cooker
invitation to settle;
more orderly industrial
action. Industrial action is inherently volatile. A lead-in notice
affords some opportunity to regulate
the event, for instance
through agreed or imposed picket rules;
damage limitation. Strikes (in
particular) are intended to cause financial loss, but a notice
requirement checks some of the
more gratuitous associated damage.
For instance, an employer working with perishable goods can take
steps to protect stock
once it knows that action is imminent;
health and safety
considerations. In the case of certain operations, an orderly
wind-down of production might prevent or limit
health and safety
risks to employees and the public.”
The
Supreme Court of Appeal accepted this description and correctly
added another purpose to the list – the protection of
the
striking employees whose conduct is rendered lawful by a proper
strike notice.
The
wording of section 64(1)(b) is clear enough about what the strike
notice should contain. But the provisions say nothing
about who
must issue the notice of the commencement of the strike and who it
must cover. According to the applicants, this
reinforces their
literal interpretation of the provisions that once a notice has
been issued it is not necessary for every
striking employee to have
given it to strike lawfully. Who issues the notice is therefore not
important and who is covered
need not be specified.
I
find difficulty with this proposition. To my mind, the absence of
an identified subject in this regard creates ambiguity that
cannot
be cured by a literal approach to the wording of the section. And,
in my view, the purpose of the section and the Act’s
primary
objects negate the applicants’ contentions. As the Supreme
Court of Appeal found, if a notice gives an employer
no indication
of which of its employees might strike, it is nigh impossible to
conceive how the employer will prepare properly
for the impending
power play. How will it make an informed decision as to whether or
not to yield to the employees’ demands?
And, if it resists,
how will it take proper steps to protect its business, the
employees and the public and engage meaningfully
in pre-strike
regulatory discussions regarding issues such as picketing rules?
In
support of the interpretation the applicants ascribed to section
64(1)(b), namely that the notice has no use other than to
inform
the employer that the strike is going ahead, their counsel
postulated problems that could arise for non-unionised employees,

in connection with the notice’s validity, if a literal
approach is not applied. These included a difficult employer
demanding proof of authorisation and the identity of those
represented from an agent issuing a strike notice on the employees’

behalf, which could spawn its own complications, and the potential
difficulties with which illiterate employees, unable to
read and
write, would have to contend to comply with the notice requirement.
It was argued that these possible hurdles would
render the
lawfulness of a strike uncertain. This, in addition to arming
employers with the certainty that would flow from
knowing the
extent of a strike, would erode the employees’ bargaining
position and make it difficult to exercise the
right to strike.
This
argument is quite seductive at first blush. This is particularly so
having regard to the importance of the right to strike
as a
critical bargaining weapon used by employees in the exercise of
collective power against employers who enjoy greater social
and
economic power
28
and the likely vulnerability of non-unionised employees in the
power play. But the spectre of debilitating problems may be
more
apparent than real. Problems need not arise on a proper,
non-technical and sensible reading of the relevant words, taking

into account the primary objects and overall purpose of the Act
which, incidentally, seeks to protect and balance the interests
of
both employees and employers.
29
The
Supreme Court of Appeal found that chaos might result should the
notice not be required from every employee intending to
strike. To
illustrate this point, the Court used one of a number of examples
postulated in the Labour Appeal Court dissent.
The example assumes
an employer with 10 000 employees at various sites across the
country. Two non-unionised employees stationed
in a small town are
dissatisfied with their particular work conditions. The majority
union at the workplace has no interest
in their cause. They refer a
dispute to the CCMA which subsequently issues a certificate of
non-resolution. One of them issues
a notice that they both intend
to strike. The employer does not consider the threat sufficiently
serious to warrant yielding
to their demands and implements minimal
measures to deal with their absence. On the day of the strike, most
of the workforce
across the country participates in the strike in
support of the two employees. Had the employer known that the
majority of
its employees would strike it would have acceded to the
demands of the two employees or taken contingency measures to
prevent
the chaos which results in the workplace.
The
applicants dismissed this example as fanciful. It was argued
further that strikes are, in any event, inherently disruptive
and
that uncertainty as to the extent of a strike is part of the
strikers’ arsenal in the power play and does not necessarily

result in disorderly collective bargaining. Even if all employees
gave notice, so continued the contention, the employer still
would
not know who would strike with any certainty. It would base its
contingency preparations on its knowledge of the history
and the
nature of the dispute, the failed negotiations and its interaction
with the workforce.
Despite
the applicants’ contentions, I find the example plausible and
instructive. In my view, it starkly shows the absurdity
that may
result from the interpretation the applicants advance; an
interpretation that renders lawful even the unheralded
participation in a strike by a workforce where only two persons,
acting solely in their own interests, without any mandate from

their co-employees, have issued a strike notice. It shows clearly
the disorder that may result where the employer has no idea
who of
its employees may strike. It does not help to argue that the
employer invariably relies on the history of dealings between
the
parties to determine who may potentially strike, as this may not be
as useful a gauge as was contended by the applicants.
The number of
employees willing to carry on with the dispute after a failed
conciliation may well change for any number of
reasons, including
simply balking at the prospect once faced with the stark reality of
a strike.
It
is so that industrial action is, by its very nature, disruptive.
However, although strikes are generally intended to impose
a
punitive cost on an employer in order to force its hand and achieve
a desired goal, the striking employees themselves and
the public
too suffer the brunt of the disruption. The volatility of
industrial action must, therefore, rank highly among the
issues
that the Act’s primary objects, of promoting orderly
collective bargaining and effective resolution of labour
disputes,
seek to address. It is as well to remember the Act’s
purposes, amongst others, to achieve peaceful labour relations
in
an orderly, democratic workplace and a thriving economy and that
the right to strike is also an extension of the collective

bargaining process. An interpretation that results in chaos and
disturbs the desired balance of labour relations that is fair
to
both employees and employers is untenable.
Furthermore,
the applicants’ stance overlooks the inherent character of
the right to strike. The fact that it is effectively
exercised
collectively does not change its true nature. It remains an
individual right exercised by individual choice as is
evident from
the wording of both the Constitution and the Act. To have any
worth, it must be connected to the person who intends
to exercise
it. It must follow that notice of that intention, which,
significantly, protects the employee as well, must be
given by or
on behalf of all those intending to exercise the right. And on that
score, non-unionised employees have relatively
simple options
available to them which make it unnecessary that each employee must
individually issue a separate notice. They
may compile a record of
their particulars or seek inclusion in the notice of the trade
union if there is one at their workplace.
What is ultimately
required is a notice that makes it possible for the employer to
reasonably identify the employees that may
strike. And whilst this
requirement may well place a burden on the exercise of the right to
strike, the constitutionality of
the provisions is not in the
balance and it is therefore unnecessary to resolve the question.
I
remain unconvinced that the applicants’ construction of
section 64(1)(b), which as I have mentioned provides protection
for
the employees as well, gives employers an unreasonable upper hand
and weakens the employees’ bargaining position
in industrial
action. It is necessary in this regard to consider the provisions
of section 64(1)(c) which set out the employers’

corresponding recourse to lock-out. The section is worded slightly
differently to section 64(1)(b) and seems to draw a distinction

between unionised and non-unionised employees. It requires “at
least 48 hours’ notice of the commencement of the
lock-out,
in writing . . . to any trade union that is a party to the dispute,
or, if there is no such trade union, to the employees”.
As I
understood the applicants’ counsel, a lock-out notice need be
given only to a trade union in the workplace, to the
exclusion of
non-unionised employees if there are any. Such an interpretation is
clearly untenable. Similarly unacceptable,
as in the case of a
strike notice, would be any possibility that a group of employers
involved in a dispute could rely on a
notice issued only by one of
them to lawfully lock-out their employees. By parity of reasoning,
the recourse to lock-out must,
necessarily, be approached in the
same manner as its counterpart. In that case, the provisions must
mean that notice is given
to a trade union where there is one and
separately to non-unionised employees as well. Then the parties’
respective positions
would be evenly balanced. But, perhaps, this
seeming difference should not matter because the focus of the
enquiry, in any
event, concerns who must give notice, not who must
receive it and there is no difficulty in that regard.
The
applicants’ attempt to rely on the legal position relating to
section 64(1)(a),
30
that it is not necessary for every employee who intends to strike
to be party to the conciliation referral and that this reasoning

should equally apply to the giving of the notice, cannot succeed.
The two subsections serve different purposes in different

scenarios. Subsection (1)(a) allows the parties room to negotiate a
settlement of their dispute through conciliation before
the
employees exercise their right to strike, whereas subsection 1(b)
requires a warning to the employer of an imminent strike
in the
event that conciliation fails. As I see it, it would make no
practical sense to require employees who were affected
by an issue
in dispute to undertake the same process in respect of the same
dispute when conciliation had already failed. In
any event, “issue
in dispute” in relation to a strike or a lock-out is defined
in the Act – it means “the
demand, the grievance, or
the dispute that forms the subject matter of the strike or
lock-out” – whereas the definition
of strike is couched
in wide, non-specific terms.
31
Therefore, the fact that anyone may legitimately refer the issue in
dispute to conciliation does not mean that, by the same
token,
anyone may issue a strike notice that covers all employees who may
wish to strike.
Conclusion
It
is ultimately essential to determine who a strike notice covers
once issued and this can be done only with reference to the

overriding purpose of the Act. The provisions of section 64(1)(b)
would indeed be an empty husk with no bearing at all to the
objects
and purposes of the Act if the notice it requires were of the
technical, formal nature contended for by the applicants.
There is
no reason to interfere with the decision of the Supreme Court of
Appeal. The dismissed strikers’ participation
in the strike
was unlawful and their dismissal was not automatically unfair. The
appeal must accordingly fail.
Costs
The
parties’ counsel agreed that costs should follow the result.
I find this approach sensible especially in view of the
fact that
Equity is in final liquidation and the respondents’ legal
representatives have been acting on a contingent
basis.
Order
In
the result, I would have granted leave but dismissed the appeal
with costs, including the costs of two counsel.
YACOOB ADCJ, FRONEMAN AND NKABINDE JJ (Cameron and Van der
Westhuizen JJ concurring):
Introduction
This
case concerns the proper interpretation of
section 64(1)(b)
of the
Labour Relations Act
32
(Act
). The section provides that in the case of a proposed strike
“at least 48 hours’ notice [in writing] of the
commencement
of the strike” must be given to the employer.
33
The
Supreme Court of Appeal construed this provision as requiring every
employee who intends to embark on a strike to notify
the employer
of that intention personally, or through a representative, for the
strike action to be protected. In her judgment
Maya AJ comes to the
conclusion that it is essential to determine who a strike notice
covers and that there is no reason to
interfere with the decision
of the Supreme Court of Appeal.
34
We disagree.
The
right to strike is protected as a fundamental right in the
Constitution without any express limitation.
35
Constitutional rights conferred without express limitation should
not be cut down by reading implicit limitations into them
36
and when legislative provisions limit or intrude upon those rights
they should be interpreted in a manner least restrictive
of the
right if the text is reasonably capable of bearing that meaning.
37
The procedural pre-conditions and substantive limitations
38
of the right to strike in the Act contain no express requirement
that every employee who intends to participate in a protected

strike must personally or through a representative give notice of
the commencement of the intended strike, nor that the notice
must
indicate who will take part in the strike.
In
our view the factual context of this case, the fundamental
importance of the right to strike, the general purpose of the
Act,
the specific purpose of section 64(1)(b) and the lack of any
express provision requiring more than mere notice of the
time when
a strike will commence, all weigh against reading implied
requirements into section 64(1)(b). We are thus unable
to agree
with the reasoning and conclusion that the second to sixty-fourth
applicants (dismissed strikers) were required to
give strike
notices in addition to that given by the first applicant (union)
before joining in the strike, or that the strike
notice had to
indicate the number of employees who were going to participate in
the strike.
We
agree that the application raises a constitutional issue and that
leave to appeal should be granted. The appeal should, however,

succeed.
Factual
context and its significance
In
her judgment Maya AJ has set out the facts that are common cause
and we do not repeat them here. But there are other facts,
also
common cause, that have a significant role to play as contextual
background for the determination of the matter.
It
is common cause that the union and Equity Aviation Services (Pty)
Ltd (Equity Aviation) entered into a recognition agreement
in terms
of which the union was the recognised bargaining agent of all the
workers employed by Equity Aviation. The union and
Equity Aviation
also entered into an agency shop agreement, the effect of which was
that all employees who were not union members
had agency fees
deducted from their wages every month, equal to the union
membership fees, and which were paid to the union.
The
breakdown in negotiations that led to the referral of the dispute
to the Commission for Conciliation, Mediation and Arbitration

(CCMA) concerned wages.
The
recognition agreement meant that for the purposes of the wage
negotiations the union represented not only its own members
but
also the dismissed strikers. Equity Aviation knew this. The Act
recognises collective agreements of this kind. A collective

agreement also binds employees who are not members of the union if
they are identified in the agreement, if it expressly binds
them
and if the union has majority support in the workplace.
39
The
consequence of this is that the dismissed strikers and other
employees were part of the collective bargaining process, through

the union, right from the outset. All these employees themselves
had no right to bargain in respect of their wages with Equity

Aviation. Accordingly the issue in dispute that was referred to the
CCMA concerned not only union employees, but also them.
It follows
that had the initial negotiations or CCMA conciliation resulted in
a wage agreement, the agreement would also have
been binding on
them. It is common cause, by now,
40
that the union’s referral of the dispute for conciliation was
sufficient for the purposes of section 64(1)(a) and that
the
dismissed strikers did not need to refer it again before resorting
to strike action.
It
is within this context that the strike notice issued on the union’s
letterhead on 15 December 2003 must be read.
It was a notice
that followed upon a process of collective bargaining where the
union represented not only its own members
but also minority union
and non-unionised members in the same wage dispute. The strike
notice merely stated that:
“
We
intend to embark on strike action on 18 December 2003 at 08H00.
Please confirm that we will meet to discuss a Picketing Agreement
on
the 17 December 2003.”
Equity
Aviation could, in this context, hardly have been under the
impression that the notice had been sent only on behalf of
the
union’s members and nobody else. Be that as it may, we proceed
to interpret the provision to determine whether the
law required the
notice to spell out anything more.
Interpretative
approach
As
mentioned earlier,
41
the right to strike is protected in the Constitution as a
fundamental right without express limitation. Also, constitutional

rights conferred without express limitation should not be cut down
by reading implicit limitations into them and when legislative

provisions limit or intrude upon those rights they should be
interpreted in a manner least intrusive of the right, if the text

is reasonably capable of bearing that meaning. These are general
interpretative principles that are also applicable to the

interpretation of provisions of the Act,
42
as explicitly affirmed in section 1(a) of the Act.
43
In
Popcru
44
this approach was formulated as follows:
“
Section
39(2) of the Constitution enjoins every court, tribunal or forum,
when interpreting any legislation, to ‘promote
the spirit,
purport and objects of the Bill of Rights.’ The interpretive
process in conformity with the Constitution is
limited to what the
texts of the provisions in question are reasonably capable of
meaning. . . . In order to ascertain the meaning
of essential
service [in the Act], regard must be had to the purpose of the
legislation and the context in which the phrase appears.
An
important purpose of the LRA is to give effect to the right to
strike entrenched in s 23(2)(
c
)
of the Constitution. The interpretative process must give effect to
this purpose within the other purposes of the LRA as set
out in s
1(
a
).
The provisions in question must thus not be construed in isolation,
but in the context of the other provisions in the LRA and
the SAPS
Act. For this reason, a restrictive interpretation of essential
service must, if possible, be adopted so as to avoid
impermissibly
limiting the right to strike. Were legislation to define essential
service too broadly, this would impermissibly
limit the right to
strike.”
45
(Footnotes
omitted.)
The
point of departure in interpreting section 64(1) is that we should
not restrict
46
the right to strike more than is expressly required by the language
of the provision, unless the purposes of the Act and the
section on
“a proper interpretation of the statute . . . imports them.”
47
The relevance of a restrictive approach is to raise a cautionary
flag against restricting the right more than is expressly
provided
for. Intrusion into the right should only be as much as is
necessary to achieve the purpose of the provision and this
requires
sensitivity to the constraints of the language used.
With
this in mind, the importance of the constitutionally protected
right to strike, the purpose of section 64(1) and its language
must
be examined.
Right
to strike
In
the
First Certification case
,
48
this Court stated that:
“
A
related argument was that the principle of equality requires that,
if the right to strike is included in the NT, so should the
right to
lock out be included. This argument is based on the proposition that
the right of employers to lock out is the necessary
equivalent of
the right of workers to strike and that therefore, in order to treat
workers and employers equally, both should
be recognised in the NT.
That proposition cannot be accepted. Collective bargaining is based
on the recognition of the fact that
employers enjoy greater social
and economic power than individual workers. Workers therefore need
to act in concert to provide
them collectively with sufficient power
to bargain effectively with employers. Workers exercise collective
power primarily through
the mechanism of strike action. In theory,
employers, on the other hand, may exercise power against workers
through a range of
weapons, such as dismissal, the employment of
alternative or replacement labour, the unilateral implementation of
new terms and
conditions of employment, and the exclusion of workers
from the workplace (the last of these being generally called a
lockout).
The importance of the right to strike for workers has led
to it being far more frequently entrenched in constitutions as a
fundamental
right than is the right to lock out. The argument that
it is necessary in order to maintain equality to entrench the right
to
lock out once the right to strike has been included, cannot be
sustained, because the right to strike and the right to lock out
are
not always and
necessarily
equivalent
.
”
(
Emphasis
added and footnote omitted.)
It
is thus important to recognise that the right to strike protected
in the Constitution must be interpreted in the general
context that
it is a right that is based on the recognition of disparities in
the social and economic power held by employers
and employees.
But
its importance does not only lie in that. It is also an aspect of
associational freedom, as recognised in International
Labour
Organisation (ILO) jurisprudence and by this Court in
Bader
Bop
,
49
and may reinforce other social and political rights as well.
50
It is significantly more than merely a means to an end.
Another
feature of the right to strike is that it is an integral part of
the collective bargaining process. As noted in
Bader Bop
,
the committees engaged with the supervision of the ILO Conventions
have asserted that the right to strike is essential to
collective
bargaining.
51
This was also recognised in the
First Certification case
.
52
The
regulatory scheme for the exercise of the right to strike under the
Act also places it squarely within the context of collective

bargaining. Section 213 of the Act defines a strike as the “partial
or complete
concerted
refusal to work . . . by
persons
”
53
(emphasis added). This means that a single worker’s stoppage
of work cannot amount to a strike under the Act.
54
In
Bader Bop
the right to strike was described as a
“component of a successful collective bargaining system.”
55
In
summary then, the right to strike must be seen in the context of a
right protected in order to redress the inequality in
social and
economic power in employer/employee relations. It also has
associational aspects to it which enhance and reinforce
other
social and political rights in the Constitution, particularly
freedom of association. It is an integral part of collective

bargaining and can be exercised only collectively, not
individually.
Language
It
bears repeating that section 64(1)(b) of the Act contains only one
express requirement as far as the content of the notice
is
concerned, namely, that it must give “at least 48 hours’
notice of the commencement of the strike”.
Strikes
and lock-outs are dealt with in Chapter IV of the Act. The scheme
provided for in this chapter was succinctly summarised
by the
Labour Appeal Court in
CWIU
:
56
“
Strikes
and lock-outs are regulated by Chapter IV (sections 64 to 77) of the
LRA.
Section
64(1) provides in general terms that ‘every employee has the
right to strike and every employer has the right to
lock-out’,
subject to certain conditions. These are set out in sub-paragraphs
(a) to (d), read with subsections (2) and
(3). They comprise an
attempt at conciliation in regard to ‘the issue in dispute’
(sub-paragraph (a)), and notice
(sub-paragraphs (b), (c) and (d)).
Section 65 is headed ‘Limitations on right to strike or
recourse to lock-out’.
It provides that ‘no person may
take part in a strike or lock-out or in any conduct in contemplation
or furtherance of
a strike or lock-out’ if (in summary terms)
a collective agreement prohibits it, the issue in dispute is
arbitrable or
justiciable or (subject to exceptions) the person is
engaged in an essential or a maintenance service. Secondary strikes
are
dealt with in section 66. In terms of section 66(1), in section
66, ‘secondary strike’ ‘means a strike, or conduct

in contemplation or furtherance of a strike, that is in support of a
strike by other employees against their employer, but does
not
include a strike in pursuit of a demand that has been referred to a
council if the striking employees . . . have a material
interest in
that demand’. Section 66(2) prohibits participation in a
secondary strike unless the strike that is to be supported
complies
with the provisions of sections 64 and 65 (sub-paragraph (a));
notice has been given (sub-paragraph (b)) and the nature
and extent
of the seco
ndary
strike is reasonable in relation to the possible direct or indirect
effect that the secondary strike may have on the business
of the
primary employer (sub-paragraph (c)).”
The
regulatory scheme of the Act and the provisions of section 64
envisage only one strike in respect of one “issue in
dispute”
or “dispute”. The definite article, “the”,
before the words “issue in dispute”
and “dispute”
in section 64(1)(a) and before the second use of the word “strike”
in section 64(1)(b)
makes this clear. “[T]he strike” in
section 64(1)(b) can only be in relation to “the [unresolved]
dispute”
of section 64(1)(a). And if there can only be one
strike in relation to one dispute, there seems to be little in
language or
logic to suggest that more than one notice in relation
to the single strike is necessary.
All
this suggests that nothing more should be read into section
64(1)(b) than what is expressly there. And the general and specific

purposes of the Act and the section are well served by this minimal
reading.
Purpose
The Supreme Court of Appeal held that the requirement of notice in
section 64(1)(b) was not a limitation of the right
to strike.
57
In
Bader Bop
58
this Court was called upon to decide whether a minority union and
its members were entitled to strike in support of organisational

demands expressly granted to majority unions in the Act, but not
expressly to minority unions.
59
In the course of her majority judgment O’Regan J stated:
“
Prohibiting
the right to strike in relation to a demand that itself relates to a
fundamental right otherwise not protected as
a matter of right in
the legislation would constitute a limitation of the right to strike
in s 23.”
60
In
CWIU
, the issue before the Labour Appeal Court was whether
the right to strike in the Act was limited only to those employees
who
are directly affected by the strike demand, again a limitation
not expressed in the Act. Although not strictly part of the ratio

of that decision, the procedural pre-conditions contained in
section 64 of the Act were correctly regarded as limitations of
the
right to strike:
61
“
It
is plain that the right to strike, conferred without express
limitation in the Constitution, is subjected to a number of

significant, expressly stated, limitations in the LRA. The statute
not only sets formal preconditions for the exercise of the right
to
strike, but imposes material limitations on who may strike.
Strikers
or those acting in contemplation or furtherance of a strike whose
conduct falls outside the statute’s limitations
are deprived
of the
protections
section 67
provides,
and are accordingly vulnerable (if employees) to dismissal and (in
any event) to suit for delict or breach of contract.
The
constitutional validity of none of these express limitations is in
issue before us. The issue is whether the right to strike
as
embodied in the statute contains the limitation for which Plascon
originally contended, namely that only those employees of
an
employer who are directly affected by the strike demand may embark
on a protected strike.
That
limitation is not expressed in the statute.
The
question is whether a proper interpretation of the provisions of the
statute, against the background sketched above, imports
them.”
62
(Emphasis
added.)
This
Court, in
New National Party
,
63
held that where legislative provisions facilitate the exercise of a
constitutional right it cannot be said that they are limitations
of
that right that need justification under section 36 of the
Constitution. Workers, however, can go on strike in the sense
of
withholding work without needing section 64 to enable them to do
it.
From
this it can be seen that procedural pre-conditions for the exercise
of a constitutional right place some limit on that
right.
64
This limitation would then have to be justified under section 36 of
the Constitution. One of the considerations in the justification

analysis is whether less restrictive means could achieve the same
purpose.
65
But
even if the matter is viewed from the perspective that the
procedural pre-conditions do not amount to limitations that need

constitutional justification, the result will not be any different.
It is also an accepted interpretative principle in our

constitutional jurisprudence that if there is more than one
interpretation of a statutory provision that is constitutionally

compliant, the interpretation that best conforms with the spirit,
purport and objects of the Bill of Rights should be preferred.
66
Approaching
the matter from that perspective, one then needs to compare an
interpretation of section 64(1)(b), which does not
seek to extend
the requirements of the content of the notice beyond the simple and
express requirement of when the strike will
start, to an
interpretation that requires fuller disclosure. If both are
constitutionally compliant, one would then have to
prefer the
interpretation that conforms better with the spirit, purport and
objects of the Bill of Rights.
It
has rightly not been suggested that interpreting section 64(1)(b)
as requiring only one notice rather than separate notices
by or on
behalf of each employee intending to strike, is unconstitutional.
We assume, for present purposes, that the interpretation
requiring
more information than that is also constitutionally permissible.
Which interpretation then, sits better with the
spirit, purport and
objects of the Bill of Rights?
In
our view there really is no contest. Interpreting the section to
mean what it expressly says is less intrusive of the right
to
strike; creates greater certainty than an interpretation that
requires more information in the notice; serves the purpose
of the
Act – specifically that of orderly collective bargaining –
better; and gives proper expression to the underlying
rationale of
the right to strike, namely, the balancing of social and economic
power.
In
CWIU
67
the purpose of the procedural requirements in section 64(1)(a) were
dealt with in the following manner:
“
The
arguments . . . proceeded, also in my view correctly, on the premise
that a proper appreciation of the statutory provisions
concerning
strikes depends on their purpose. Mr van der Riet contended
that the purpose of section 64(1)’s procedural
requirements is
to compel employees to explore the possible resolution of their
dispute through negotiations before exercising
their right to
strike. The concept of a protected strike presupposes such
negotiations. Once that purpose has been fulfilled,
no further
statutory object would be served by limiting the right to strike
only to employees directly affected by the demand.
Instead, the
restriction envisaged would place a substantive limitation on the
right of non-bargaining unit union members to
strike for which the
provisions of the statute offer no explicit or implicit support. I
agree with this submission.
The Constitutional Court has
itself emphasised the general importance of the right to strike:
‘
Collective
bargaining is based on the recognition of the fact that employers
enjoy greater social and economic power than individual
workers.
Workers therefore need to act in concert to provide them
collectively with sufficient power to bargain effectively with

employers. Workers enjoy collective power primarily through the
mechanism of strike action.’
The Court
went [on] to point out that the importance of the right to strike
for workers has led to its being entrenched far more
frequently as a
fundamental right in constitutions than is the right to lock out and
that the two rights ‘are not always
and necessarily
equivalent’ (
In re:
Certification of the Constitution of the Republic of South Africa,
1996
1996 (10) BCLR 1253
(CC) at 1284–1285
(paragraph 66)). This is of course not to say that striking should
be encouraged or unprocedural strikes condoned: but only that
there
is no justification for importing into the LRA,
without
any visible textual support, limitations on the right to strike
which are additional to those the legislature has chosen
clearly to
express
.” (Emphasis added.)
We agree.
The
specific purpose of the notice requirement under section 64(1)(b)
was dealt with by the Labour Appeal Court in
Ceramic
Industries
:
68
“
In
summary: The provisions
of
section 64(1)(b)
need
to be interpreted and applied in a manner which gives best effect to
the primary objects of the Act and its own specific
purpose.
That
needs to be done within the constraints of the language used in the
section.
One
of the primary objects of the Act is to promote orderly collective
bargaining. Section 64(1)(b) gives expression to this object
by
requiring written notice of the commencement of the proposed strike.
The section’s specific purpose is to give an employer
advance
warning of the proposed strike so that an employer may prepare for
the power play that will follow. That specific purpose
is defeated
if the employer is not informed in the written notice in exact terms
when the proposed strike will commence. In the
present case the
notice is defective for that reason. The provisions of section
64(1)(b) were not complied with.”
69
(Emphasis
added.)
Both
these cases emphasise the importance of founding the purpose of
restrictions on the right to strike in the express language
of the
Act. Their correctness was not challenged before us. Instead,
certain parts of
Ceramic Industries
were relied upon for a
purposive argument that takes one beyond the express language of
the Act. In our view this reliance
on an extended purpose is both
unnecessary and misplaced.
It
is unnecessary because the purpose of, amongst others, labour
peace, through the fulfilment of one of the primary objects
of the
Act, namely orderly collective bargaining,
70
can be attained without stretching the language of the Act or
reading implied limitations of the right to strike into its
provisions.
Also,
the purposive argument, partially drawing on
Ceramic
Industries
,
71
is misplaced.
First,
it ignores the fact that the actual decision in
Ceramic
Industries
was anchored in the express wording of section
64(1)(b).
72
The employer’s argument in the present case is not. What was
at issue in
Ceramic Industries
was whether the explicit
requirement in section 64(1)(b), that notice of the commencement of
the strike had to be given, served
a proper purpose under the Act.
73
It was found that this express requirement fulfilled the purposes
of the Act.
74
Second,
the requirement that the notice must contain information beyond the
time of commencement of the strike, undoubtedly
restricts the right
to strike more than an interpretation requiring only notice of the
time of commencement of the strike.
And it leads to greater
uncertainty than the latter interpretation does.
Where
does the purpose of full disclosure of information lead? Does it
require stating the location of the strike? Or for how
long it will
last? Or more than one notice where, as here, the dismissed
strikers did not belong to the majority union? Or
whether there may
be more than one strike at different times and places in relation
to the same dispute referred to conciliation?
The difficulty, as
Schutz JA observed in
Poswa
—
75
“
which
faces any argument which claims better knowledge of what the
legislature intended than what the legislature itself appears
to
have had in mind when it expressed itself as it did, is to establish
with reasonable precision what the unexpressed intention
contended
for, was”.
76
The
contrast with the minimal express requirements of section 64(1)(b)
is stark. All that is expressly required in terms of
section
64(1)(b) is a single notice stating when the strike will start.
That
requiring more than this will lead to uncertainty and a further
chilling effect on workers’ reliance on their right
to strike
is illustrated by the facts of this case. The employer initially
contested the dismissed strikers’ right to
participate in the
strike on the basis that they were not included in the dispute
referred for conciliation under section 64(1)(a).
That stance
has now been abandoned in favour of the present ground based on the
ambit of the notice. It requires little imagination
to see that the
opportunity for objection to the validity of strike notices will be
greatly increased if fuller information
is required in the notice
on the basis that it allows employers to prepare for the power play
of the strike.
We
have already seen
77
that the right to strike, rooted in collective bargaining, is
premised on the need to introduce greater balance in the relations

between employers and employees, where employers have the greater
social and economic power. The fact that the Act, in section
64,
expressly requires minimal procedural pre-conditions for the
statutorily protected exercise of that right is consistent
with
this. It does not ask for the exclusion of uncertainty in strike
action, except for certainty when the strike will start.
To
require more information than the time of its commencement in the
strike notice from employees, in order to strengthen the
position
of the employer, would run counter to the underlying purpose of the
right to strike in our Constitution – to
level the playing
fields of economic and social power already generally tilted in
favour of employers.
The
applicants accepted that, in relation to lock-outs, the express
provisions of section 64(1)(c)
78
of the Act require notice only to a trade union, if there is one at
the workplace, and not to non-unionised employees as well.
To hold
otherwise would, in relation to section 64(1)(c), mean that the
express wording would have to be disregarded. There
is no need to
do that either to fulfil the purposes of the Act.
Existing case law
The argument that it is crucial for the employer to glean from the
strike notice how many employees may be involved in the
strike is
discounted by the decision in
CWIU
,
79
where the Labour Appeal Court held that a single strike notice by a
union, in respect of a dispute that affected only certain
of its
members, was nevertheless sufficient to allow other members of the
union, not so affected, to join the strike. The Labour
Appeal Court
again confirmed this in
Early Bird Farm
.
80
We agree with these decisions.
That
section 64(1)(b) does not go beyond the requirement of giving
notice of commencement of the strike has been accepted and
followed
in many Labour Court cases, often in a generous manner. The notice
need not specify the precise time of the day when
the strike will
start.
81
Employees are not obliged to commence striking at the time
indicated in the notice.
82
If employees who have already commenced striking temporarily
suspend the strike, they need not issue a fresh notice to strike
or
refer the dispute for conciliation again.
83
Where strikers have given insufficient time in their original
notice, but cured that in a later notice, the time given in the
two
notices is taken cumulatively.
84
So-called “grasshopper” strikes – brief
repetitive work stoppages – do not require fresh notices.
85
Provided
that the strike notice sets out the issue over which the employees
will go on strike with reasonable clarity,
86
these cases show that orderly collective bargaining and the right
to strike, in its proper sense as a counter-balance to the
greater
social and economic power of employers, has been considered to be
well served by the acceptance of a single strike
notice.
87
It
has not been suggested, nor could it be, that the construction
preferred in this judgment is anything but reasonable.
Conclusion
In
the context of this case this means that the union, which
represented the dismissed strikers in the wage negotiations and
in
the referral for attempted conciliation under section 64(1)(a)
before embarking on strike action, was competent also to
give the
single notice required under section 64(1)(b). Our concluding
observation is this: to hold otherwise would place a
greater
restriction on the right to strike of non-unionised employees and
minority union employees than on majority union employees.
It is
these employees, much more than those who are unionised or
represented by a majority union, who will feel the lash of
a more
onerous requirement. There is no warrant for that where they were
already denied the right to bargain collectively on
their own
behalf in the preceding process.
Order
The
following order is made:
Leave
to appeal is granted.
The
appeal succeeds with costs, including the costs of two counsel.
It
is declared that the dismissal of the individual applicants on 18
November 2004 by the respondent was automatically unfair
in terms
of
section 187(1)(a)
of the
Labour Relations Act.
For
the Applicants: Advocate JG Van der Riet SC and Advocate TMG Euijen
instructed by Cheadle Thompson & Haysom Inc.
For
the Respondents: Advocate JJ Gauntlett SC and Advocate GA Leslie
and Advocate H Cronje instructed by Senekal Simmonds Inc.
1
The
provision is set out in [15] below.
2
2012
(2) SA 177
(SCA).
3
Section
67(1) of the Act defines a “protected strike” as one
that complies with the provisions of Chapter IV of the
Act.
4
Section
187(1)(a) of the Act reads:
“
(1) A dismissal is
automatically unfair if the employer, in dismissing the employee,
acts contrary to section 5 [which confers
protections relating to
the right to freedom of association] or, if the reason for the
dismissal is—
(a) that the employee participated in or supported, or
indicated an intention to participate in or support, a strike or
protest
action that complies with the provisions of Chapter IV
[which deals with industrial action and conduct in support of
industrial
action]”. (Footnote omitted.)
5
The
judgment is reported as
SATAWU and
Another v Equity Aviation Services (Pty) Ltd
[2006]
11 BLLR 1115
(LC).
6
One
of the issues before the Labour Court concerned a claim made by the
dismissed strikers that they were SATAWU members. The
question was
whether their submission of stop-order forms to the union to
facilitate payment of their membership dues after SATAWU
had issued
the strike notice resulted in their recognition as members of the
union. The Labour Court found that it did. This
finding was held to
be incorrect on appeal to the Labour Appeal Court. It was not
challenged before the Supreme Court of Appeal
and is not in issue in
these proceedings.
7
Equity
Aviation Services (Pty) Ltd v SATAWU
[2009] 10 BLLR 933
(LAC)
(Khampepe ADJP; Davis J concurring separately; and Zondo JP
dissenting).
8
Above
n 2.
9
Section
23(2)(c) of the Constitution grants every worker the fundamental
right to strike.
10
National
Education Health and Allied Workers Union
v University
of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003
(2) BCLR 154
(CC) (
NEHAWU v UCT
) at para 14 and
NUMSA and
Others v Bader Bop (Pty) Ltd and Another
[2002] ZACC 30
;
2003
(3) SA 513
(CC);
2003 (2) BCLR 182
(CC) at para 15.
11
In
terms of section 167(3)(b) of the Constitution, this Court “may
decide only constitutional matters, and issues connected
with
decisions on constitutional matters”.
12
Set
out in section 1.
13
Sections
64 to 77.
14
Section
65 sets out the substantive limitations and
forbids any person from participating in a strike or a lock-out or
in any conduct
in contemplation or furtherance of a strike or a
lock-out if the person is bound to a collective agreement that
prohibits it,
or to an agreement that requires the issue in dispute
to be referred to arbitration, or, subject to exceptions, the person
is
engaged in an essential or maintenance service.
15
75
of 1997.
16
5
of 1957.
17
This
injunction conforms to the purposes of the Act which include giving
effect to and regulating the right to strike (and recourse
to
lock-out) in a manner that is consonant with the
Constitution.
Section 39(1) of the Constitution requires a court
interpreting constitutional rights to consider international law.
South Africa
is a member of the International Labour Organisation,
which recognises the right to strike as a fundamental right
essential to
a successful collective bargaining system, and whose
conventions and recommendations have been recognised by this Court
(in
South African National Defence Union v Minister of Defence
and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR
615
(CC)) as an important source of international law.
18
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at para 110.
19
NEHAWU
v UCT
above n 10 at paras 16 and 41.
20
Ceramic
Industries Ltd t/a Betta Sanitaryware and Another v NCBAWU and
Others
[1997] 6 BLLR 697
(LAC)
(
Ceramic Industries
)
at 701H. See also
Fidelity Guards
Holdings (Pty) Ltd v PTWU and Others
[1997]
9 BLLR 1125
(LAC).
21
S
v Makwanyane
[1995] ZACC 3
;
1995 (3)
SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 325 and
Business
SA v COSATU and Another
[1997] 5 BLLR
511
(LAC) at 516A-B.
22
S
v Zuma and Others
[1995] ZACC 1
;
1995
(2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at paras 15-8 and
CWIU
v Plascon Decorative (Inland) (Pty) Ltd
[1998]
BLLR 1191
(LAC) at 1199D-E.
23
The
reference to section 27 in section 1(a) was previously directed at
the interim Constitution and must now be regarded as reference
to
section 23 of the Constitution.
24
Above
n 20 at 701H-702G-H (per Froneman DJP, Myburgh JP and Nicholson JA).
25
Fidelity
Guards Holdings (Pty) Ltd v PTWU and Others
[1997] 9 BLLR 1125
(LAC) at 1134C. See also
SA Airways (Pty) Ltd v SATAWU
(2010)
3 BLLR 321
(LC) at para 22.
26
In
Transnet Ltd v SATAWU and Another
[2011] 11 BLLR 1123
(LC) the
underlying ratio in
Ceramic Industries
Ltd
was used to determine the meaning
of section 64(1)(b) in the context of a strike notice that did not
clearly identify the location
of the intended strike.
27
Helen
Seady and Clive Thompson in their chapter “Strikes and
Lockouts” (in Thompson and Benjamin
South African Labour
Law
(loose-leaf) Vol 1 AA1-314 (Juta)).
28
See
for example
South African Police
Service v Police and Prisons Civil Rights Union and Another
[2011]
ZACC 21
;
2011 (6) SA 1
(CC);
2011 (9) BCLR 992
(CC) at para 19 and
Ex Parte
Chairperson
of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa
[1996]
ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 66.
29
NEHAWU
v UCT
above n 10 at paras 39 and 40.
30
Section
64(1)(a) of the Act sets out one of the preconditions for the
exercise of the right to strike and provides that every
employee has
the right to strike if—
“
the issue in dispute has been referred to a
council or to the Commission as required by this Act, and—
a certificate stating that the dispute remains
unresolved has been issued; or
a period of 30 days, or any extension of that period
agreed to between the parties to the dispute, has elapsed since the
referral
was received by the council or the Commission”.
31
Section
213 defines “strike” as follows:
“‘
strike’ means
the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who
are or have been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving
a dispute in respect
of any matter of mutual interest between employer and employee, and
every reference to ‘work’
in this definition includes
overtime work, whether it is voluntary or compulsory”.
(Emphasis omitted.)
32
66
of 1995.
33
Section
64 provides, in relevant part:
“
64 Right to strike and
recourse to lock-out
(1) Every
employee
has the right to strike and
every employer has recourse to lock-out if—
(a)
the
issue
in
dispute
has been
referred to a
council
or to the Commission as required by
this Act
, and—
(i) a certificate stating that the
dispute
remains unresolved has been issued; or
(ii) a period of 30 days, or any extension of that
period agreed to between the parties to the
dispute
, has
elapsed since the referral was received by the
council
or the
Commission; and after that—
(b)
in the case of a proposed
strike
, at
least 48 hours’ notice of the commencement of the
strike
,
in writing, has been given to the employer, unless—
(i) the issue in
dispute
relates to a
collective
agreement
to be concluded in a
council
, in which case,
notice must have been given to that
council
; or
(ii) the employer is a member of an
employers’
organisation
that is a party to the
dispute
, in which
case, notice must have been given to that
employers’
organisation
; or
(c)
in the case of a proposed
lock-out
,
at least 48 hours’ notice of the commencement of the lock-out,
in writing, has been given to any
trade union
that is a party
to the
dispute
, or, if there is no such
trade union
,
to the
employees
, unless the
issue in dispute
relates
to a
collective agreement
to be concluded in a
council
,
in which case, notice must have been given to that
council
;
or
(d)
in the case of a proposed
strike
or
lock-out
where the State is the employer, at least seven
days’ notice of the commencement of the
strike
or
lock-out
has been given to the parties contemplated in
paragraphs
(b)
and
(c)
.” (Emphasis in original.)
34
Above
at [38].
35
Section
23(2)(c) of the Constitution provides that “[e]very worker has
the right to strike.”
36
South
African Police Service v Police and Prisons Civil Rights Union and
Another
[2011] ZACC 21
;
2011 (6) SA 1
(CC);
2011 (9) BCLR 992
(CC) (
Popcru
) at paras 29-30;
National Union of
Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and
Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC);
[2003] 2 BLLR 103
(CC) (
Bader Bop
) at paras 13 and 67;
and
National Education Health & Allied Workers Union v
University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 39.
37
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
)
at paras 22-3. See also
Wary Holdings (Pty)
Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) (
Wary
Holdings
) at paras 46-7 and
De
Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 85.
38
Compare
CWIU v Plascon Decorative (Inland) (Pty) Ltd
[1998] 12 BLLR
1191
(LAC) at para 21.
39
Section
23(1)(d) of the Act provides:
“
A collective agreement binds
employees
who are not members of the registered
trade
union
or
trade
unions
party to
the agreement if—
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) the
trade union
or those
trade unions
have as their members the majority of the
employees
employed
by the employer in the
workplace
.”
40
The
employer only conceded this before the hearing in the Labour Appeal
Court.
41
Above
at [43].
42
See
cases referred to in n 36 above.
43
Section
1(a) provides:
“
The purpose of
this
Act
is to advance
economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary
objects
of
this Act
,
which are to give effect to and regulate the fundamental rights
conferred by section 27 of the Constitution” (footnote

omitted).
“
[T]he
Constitution” referred to is the Interim Constitution, which
was repealed by the Constitution. Therefore, a
lthough
the Act refers to section 27 of the Interim Constitution, for the
purposes of interpretation of the Act, that should be
read to refer
to section 23 of the Constitution. See
Bader
Bop
above n 36 at 19, fn 20.
44
Above
n 36.
45
Id
at paras 29-30.
46
Whether
the restriction amounts to a limitation of the right or not: see
[81] below.
47
Above
n 38 at para 21.
48
Ex
Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South
Africa, 1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10)
BCLR 1253
(CC) (
First Certification case
) at para 66.
49
Bader
Bop
above n 36 at para 34. Compare also the Universal
Declaration of Human Rights,
G.A. Res. 217A(III),
UN. Doc. A/810 (1948)
. It guarantees every person the right
“to freedom of . . . association” (article 20(1)) and
“to form and join
trade unions for the protection of [their]
interests” (article 23(4)).
50
Compare
Novitz
International and European Protection of the Right to
Strike – A Comparative Study of Standards Set by the
International
Labour Organization, the Council of Europe and the
European Union
(Oxford University Press, Oxford 2003) at 49-73.
51
Bader
Bop
above n 36 at paras 32 and 34.
52
Above
at [56] n 48.
53
The
definition reads as follows:
“‘
strike
’
means the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who are
or have been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a
dispute
in respect of any matter of mutual interest between employer and
employee
,
and every reference to ‘work’ in this definition
includes overtime work, whether it is voluntary or compulsory”.
54
Compare
Schoeman & Another v Samsung Electronics SA (Pty) Ltd
(1997) 18 ILJ 1098 (LC).
55
Above
n 36 at para 13.
56
Above
n 38 at para 17.
57
Equity
Aviation Services (Pty) Ltd v South African Transport and Allied
Workers Union and Others
2012 (2) SA
177
(SCA)
at para 26.
58
Above
n 36.
59
Id
at paras 1 and 25.
60
Id
at para 35.
61
Above
n 38.
62
Id
at para 21.
63
New
National Party v Government of the Republic of South Africa and
Others
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) at para 123.
64
See
South African Transport and Allied Workers
Union and Another v Garvas and Others
[2012]
ZACC 13
at para 69.
65
Section
36(1)(e).
66
Wary
Holdings
above n 37 at paras 46 and 47 and
Hyundai
above
n 37 at paras 21-6.
67
Above
n 38 at paras 27-8.
68
Ceramic
Industries Ltd t/a Betta Sanitaryware and Another v NCBAWU and
Others
[1997]
6 BLLR 697
(LAC) (
Ceramic
Industries
).
69
Id
at
702F-I.
70
Section
1.
71
The
purported purposes of the strike notice are elaborated on by Helen
Seady and Clive Thompson in their chapter “Strikes
and
Lockouts” (in Thompson and Benjamin
South African Labour
Law
(loose-leaf) Vol 1 AA1-314), which is also relied upon in
the judgment of the Supreme Court of Appeal (above n 57) at para 15.
72
The
italicised portion in the passage quoted in [76] above clearly shows
this.
73
Ceramic
Industries,
above n 68, at 699 and 701-2.
74
Id
at 702.
75
Poswa
v Member of the Executive Council Responsible for Economic Affairs
Environment and Tourism, Eastern Cape
2001 (3) SA 582
(SCA).
76
Id
at para 9.
77
In
[56] above, quoting para 66 of the
First Certification case
.
78
See
above n 33.
79
Above
n 38 at paras 21, 24 and 27.
80
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and Others
(2004) 25 ILJ 2135 (LAC) (
Early Bird Farm
) at para 48.
81
County
Fair Foods
(A Division of Astral Operations Ltd) v Hotel
Liquor Catering Commercial and Allied Workers Union and Others
(2006) 27 ILJ 348 (LC).
82
Tiger
Wheels Babelegi (Pty) Ltd t/a TSW International v National Union of
Metalworkers of SA
and Others
(1999) 20 ILJ 677 (LC) and
Public Servants Association of SA v Minister of Justice and
Constitutional Development and Others
(2001) 22 ILJ 2303 (LC).
83
Transportation
Motor Spares v National Union of Metalworkers of SA and Others
(1999) 20 ILJ 690 (LC) (
Transportation
).
84
SA
Clothing and Textile Workers Union v Stuttafords Department Stores
Ltd
(1999) 20 ILJ 2692 (LC).
85
Compare
Afrox Limited v SA Chemical Workers Union and Others (1)
(1997)
18 ILJ 399 (LC) and
Transportation
above n 83.
86
Grogan
Collective Labour Law
(Juta, 2010) at 169-71.
87
The
requirement has been extended beyond the time provision in the
Labour Court by relying on the same wrong application of
Ceramic
Industries
above n 68: see
Transnet Ltd v
SA Transport & Allied Workers Union
(2011)
32 ILJ 2269 (LC
).