CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 233/20
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION First Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J420/19) Second Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J424/19) Third Applicant
INDIVIDUALS LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J430/19) Fourth Applicant
THE PERSONS WHOSE NAMES APPEAR ON
ANNEXURE “A1” TO THE NOTICE OF
MOTION (J431/19) Fifth Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J432/19) Sixth Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J438/19) Seventh Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J439/19) Eighth Applicant
EMPLOYEES LISTED IN ANNEXURE “A”
TO THE NOTICE OF MOTION (J440/19) Ninth Applicant
MEMBERS OF AMCU EMPLOYED BY
THE APPLICANT (J442/19) Tenth Applicant
MEMBERS OF AMCU EMPLOYED BY
THE APPLICANT (J444/19) Eleventh Applicant
and
ANGLO GOLD ASHANTI LIMITED T/A
ANGLO GOLD ASHANTI (J420/19) First Respondent
LONMIN PLATINUM COMPRISING WESTERN
PLATINUM AND EASTERN PLATINUM
LIMITED T/A LONMIN (J424/19) Second Respondent
RUSTENBURG PLATINUM MINES LIMITED T/A
RUSTENBURG PLATINUM MINES (J430/19) Third Respondent
HARMONY GOLD MINING COMPANY
LIMITED T/A HARMONY GOLD
(J431/19) Fourth Respondent
VILLAGE MAIN REEF (PTY) LIMITED,
TAU LEKOA (PTY) LIMITED AND
KOPANONG (PTY) LIMITED T/A
VILLAGE MAIN REEF
(J432/19) Fifth Respondent
NORTHAM PLATINUM LIMITED T/A
NORTHAM PLATINUM (J440/19) Sixth Respondent
MARULA PLATINUM (PTY) LIMITED
(J439/19) Seventh Respondent
IMPALA PLATINUM LIMITED T/A IMPALA
PLATINUM (J440/19) Eighth Respondent
GLENCORE OPERATIONS SA (PTY)
LIMITED (J443/19) Ninth Respondent
BUSHVELD VAMETCO ALLOYS (PTY)
LIMITED (J444/19) Tenth Respondent
Neutral citation: Association of Mineworkers and Construction Union and Others v
Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others
[2021] ZACC 42
Coram: Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J,
Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J.
Judgments: Pillay AJ (majority): [1] to [111]
Jafta J (concurring in costs orders only): [112] to [160]
Theron J (concurring): [161] to [170]
Heard on: 6 May 2021
Decided on: 12 November 2021
Summary: Section 66(2)(c) of the Labour Relations Act 66 of 1995 —
lawfulness of secondary strikes — section 66(2) imports a
proportionality assessment
Secondary employer — interdicting secondary strikes —
proportionality assessment
ORDER
On appeal from the Labour Appeal Court, the following order is made:
(a) Leave to appeal is granted.
(b) Save as set out below, t he appeal against the judgments of the Labour
Court and the Labour Appeal Court is dismissed.
(c) The costs orders in the Labour Court and the Labour Appeal Court are set
aside.
(d) Each party shall pay its own costs in the Labour Court, the Labour Appeal
Court and this Court.
4
JUDGMENT
PILLAY AJ (Khampepe ADCJ, Madlanga J, Majiedt J, Mhlantla J, Tlaletsi AJ and Tshiqi J
concurring):
Introduction
“[The right to strike] is to the process of bargaining what an engine is to a motor
vehicle.”1
[1] The Labour Court interdicted the intended secondary strikes at 10 mining
companies in support of a primary strike at Sibanye Gold Limited t/a Sibanye Stillwater
(Sibanye).2 That primary strike has long been resolved, and consequently, the dispute
is no longer live. However, this application for leave to appeal poses a discrete question
of law: does section 66(2)(c) of the Labour Relations Act 3 (LRA) import the principle
of proportionality when assessing the substantive lawfulness of secondary strikes? It is
to address this question, that I pen this judgment notwithstanding the absence of a live
dispute.
Parties
[2] The first applicant is the Association of Mineworkers and Construction Union
(AMCU). It brings this application together with its members, the second to eleventh
applicants, who are employe es of the first to tenth respondent s. The first to eleventh
1 National Union of Metal Workers of S A v Bader Bop (Pty) Ltd [2002] ZACC 30; 2003 (3) SA 513 (CC); 2003
(2) BCLR 182 (CC) (Bader Bop) at para 67.
2 Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti v Association for Mineworkers and Construction Union
(2019) 40 ILJ 1552 (LC) (Labour Court judgment) at para s 273-5 and 278. The order of the Labour Court was
upheld on appeal in Association of Mineworkers and Construction Union v Angl ogold Ashanti Limited t/a
Anglogold Ashanti [2020] ZALAC 45; (2020) 41 ILJ 2763 (LAC) (Labour Appeal Court judgment) .
3 66 of 1995.
PILLAY AJ
5
applicants will be referred to as either “AMCU” or “the applicants” and together they
represent all AMCU members at various companies who intended to participate in the
secondary strikes.
[3] The first to tenth respondent s are Anglo Gold Ashanti Limited t/a Anglo Gold
Ashanti; Lonmin Platinum Comprising Western Platinum Limited and Eastern
Platinum Limited t/a Lonmin; Rustenburg Platinum Mines Limited t/a Rustenburg
Platinum Mines; Harmony Gold Mining Company Limited t/a Harmony Gold; Village
Main Reef (Pty) L imited; Tau Lekoa (Pty) L imited and Kopanong (Pty) L imited t/a
Village Main Reef; Northam Platinum Limited t/a Northam Platinum; Marula Platinum
(Pty) Limited; Impala Platinum Limited t/a Impala Platinum; Glencore Operations SA
(Pty) Limited and Bushveld Vametco Alloys (Pty) Limited. They are mining companies
operating in the Republic of South Africa. Collectively, they will be referred to as “the
respondents” or “the secondary employers” as the context requires. Only the second,
third, fourth, sixth, seventh, eighth and tenth respondents participated in this appeal.
Factual background
[4] Sibanye is a public company operating in the gold and platinum mining industry.
It is the primary employer in this dispute concerning secondary strikes . Wage
negotiations with AMCU commenced before the Minerals Council of South Africa
(Minerals Council) on 11 July 2018. Shortly thereafter, AMCU referred a mutual
interest dispute about wages and other conditions of employment t o the CCMA . A
certificate of non-resolution of the dispute was issued on 26 September 2018, resulting
in AMCU commenc ing the strike against Sibanye on 21 November 2018. By
20 February 2019, the primary strike was still under way. AMCU gave notice to the
respondents of its intention to commence secondary strikes for a week, beginning on
28 February 2019, and concluding on 7 March 2019.
[5] All AMCU members employed by the respondents were to be involved in the
secondary strikes. AMCU’s representivity varied amongst the secondary employers .
PILLAY AJ
6
For example, at four respondents, AMCU held a sizeable majority representation. The
respondents employed members of other trade unions too.
[6] The secondary strikes would have severely disrupted the respondents’ operations
and prevented production for their entire duration. The respondents, miners of mainly
gold and platinum, stood to lose millions of Rands in revenue. Formidable costs would
have been incurred in shutting down and then restarting the mining operations as well
as in maintenance services to keep mines continuously safe.
[7] Although the seven-day multi-employer secondary strikes would have
constituted only 2% of the working year, the daily losses each respondent would have
experienced was estimated to exceed R11 million, and as much as R214 million in one
instance. Cumulatively, the losses over seven days across all ten respondents would
exceed R2 billion. That is not all. The practicalities and safety considerations of a total
shut down for the respondents and non -striking employees militated against allowing
the secondary strikes to proceed.
[8] The standard “no work, no pay” principle applied to striking employees . That,
and hard bargaining, had the potential of exacerbating the level of violence associated
with the primary strike. Already, by then, seven non-striking employees at Sibanye had
died.
[9] The respondents’ stance was that the secondary strikes would have no effect on
the business of Sibanye, but would cause their businesses significant harm. Taking the
opposite view on the effect of the secondary strikes, AMCU acknowledged the harmful
impact of the secondary strikes on the respondents, but dismissed it as par for the course.
This dispute whittle s to the interpretation and application of section 66( 2)(c), which
provides –
PILLAY AJ
7
“No person may take part in a secondary strike unless the nature and extent of the
secondary 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”.4
[10] The respondents were of the view that the secondary strikes would have been
unreasonable in terms of the above provision. They turned to the Labour Court to stop
the secondary strikes.
Litigation History
Labour Court
[11] Each respondent raised distinct arguments about the harmful effects that the
secondary strike at its workplace would have on its operations without having any direct
or indirect effect on collective bargaining between AMCU and the primary employer.
The gist of the respondents’ submissions was that the secondary strike s were
disproportionate to the primary strike. Therefore, the secondary strike s were not
reasonable in relation to the ir possible direct or indirect effect on the business of the
primary employer. The respondents contended that no nexus existed between Sibanye
and themselves and that they were unable to exert any influence over the outcome of
the primary strike , because exerting pressure was not possible when they shared no
commodities, assets or resources with Sibanye.
[12] Moreover, the respondents continued, the cause , for which each secondary
strike was called, was not one in which the employees of the secondary employer s had
4 Section 66(2) states that no person may take part in a secondary strike unless—
“48 hours’ notice of the application has been given to the respondent: However, the Court may
permit a shorter period of notice if—
(a) the applicant has given written notice to the respondent of the applicant’s
intention to apply for the granting of an order;
(b) the respondent has been given a reasonable opportunity to be heard before a
decision concerning that application is taken; and
(c) the nature and extent of the secondary 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.”
PILLAY AJ
8
any interest or expectations of gain. And worker solidarity alone was not enough to
justify a secondary strike. The respondents argued further that exposing their non-union
employees to the risk of violence , when they had no control or influence over the
primary strike , would be grossly unfair . Therefore, the respondents averred, the
secondary strike s did not meet the requirements set out in section 66(2)(c).
Consequently, the secondary strikes were unprotected and fell to be interdicted.
[13] Opposing the application for the interdict, AMCU argued that the right to strike
in section 23(2) (c) of the Constitution 5 does not distinguish between the right to
participate in a primary and a secondary strike. It submitted that the proposed secondary
strikes complied with section 66(2) , and that the nature and extent of the secondary
strikes were reasonable in relation to the possible direct or indirect effect that the
secondary strikes might have on the business of the primary employer . The intended
secondary strikes would be for the short period of seven days , or 2% of the working
year. Furthermore, they would take the form of a stay-away which would alleviate the
risk of violence.
[14] AMCU’s primary argument turned on t he role of the Minerals Council. As a
registered employers ’ organisation, it could influence collective bargaining in the
mining industry. AMCU banked on the secondary employers, as members of the
Minerals Council , bringing their influence to bear on Sibanye’s Chief Executive
Officer, Mr Neal Froneman, the Vice President of the Minerals Council . AMCU
reasoned that the secondary employers could swing sentiment favourably towards
AMCU’s members at Sibanye to avert the costs and inconveniences of secondary strikes
in their own workplaces.
5 Section 23(2) of the Constitution states:
“Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.”
PILLAY AJ
9
[15] All in all , continued AMCU, the secondary strike s would be eminently
reasonable. Economic loss was not a factor that ranked highly when considering
industrial action. Instead, economic loss was an inevitable consequence which
underpinned the purpose of industrial action . Even before the secondary strikes
commenced, ratings agency Moody’s announce d its intention to downgrade Sibanye’s
credit rating and share price. This showed, so the argument went, that the simultaneous
secondary strike s would fulfil their legally protected purpose by inducing economic
pressure on Sibanye.
[16] In reply, the respondents delivered an affidavit to which they annexed a signed
statement from Sibanye’s Chief Executive Officer stating that Sibanye remained
resolutely unmoved by the secondary strikes. The Minerals Council also weighed in to
deny having any influence on the business of the primary employer and collective
bargaining between AMCU and Sibanye. Instead, its testimony was that its primary
function was to lobby and advocate on behalf of its members on policy matters.
[17] The Labour Court accepted that the procedural requirements in section 66(2)(a)
and (b) had been fulfilled.6 The application to declare the strike unprotected, therefore,
turned only on the requirement of reasonableness in section 66(2)(c).7
[18] The Labour Court held that section 66(2)(c) required a consideration of the
direct or indirect effect of the secondary strike s on the primary employer while also
entailing an enquiry into the impact on the secondary em ployer, having regard to the
nature and extent of the secondary strike s.8 It was ultimately a proportionality
assessment to determine whether the harm caused by the secondary strike s to the
secondary employer was proportional to the ir impact on the busine ss of the primary
6 Labour Court judgment above n 2 at para 16.
7 Id.
8 Id at para 17.
PILLAY AJ
10
employer.9 If the harm was proportional, then the secondary strike s satisfied the
requirement of section 66(2)(c); if it was not, then it was unprotected.10
[19] Based on SALGA II,11 the Labour Court noted that “it is an enquiry into the extent
of the pressure that is placed on the primary employer” .12 This factual enquiry was to
be undertaken with reference to each individual secondary employer; the grouping
together of secondary employers in an industry to gauge for the combined effect of the
secondary strikes on the primary employer was impermissible.13 A collective approach
would deprive each secondary employer of the protection afforded to it by
section 66(2)(c).14
[20] Furthermore, t he enquiry into reasonableness required a consideration of the
form and duration of the anticipated secondary strike including the extent of the strike’s
impact, the sector in which it occur red, the number of employees involved and their
conduct. In conducting a proportionality analysis to assess the reasonableness of the
secondary strikes on the respondents, the Labour Court held that the secondary strike s
would result in severe disruptions to the business of the secondary employers.15 It found
AMCU’s suggestion that they use replacement labour impossible to impleme nt. T he
lengthy recruitment process would far exceed the seven -day notice to secondary
employers.16 Furthermore, AMCU’s apparent inability to control its members
suggested that the secondary employers’ fears of violence during the secondary strikes
were well founded.17
9 Id.
10 Id.
11 SALGA v SAMWU [2011] ZALAC 4; (2011) 32 ILJ 1886 (LAC) (SALGA II) at para 9.
12 Labour Court judgment above n 2 at para 18.
13 Id at para 22.
14 Id.
15 Id at para 198.
16 Id at para 199.
17 Id at para 207.
PILLAY AJ
11
[21] On the law, t he Labour Court acknowledged that the effect of the secondary
strikes on the primary employer d id not necessarily mean that there had to be a nexus
between the primary and secondary employer s. It held, however, that it was “difficult
to conceive how a secondary strike could have a direct or indirect effect on the primary
employer’s business without some relationship of sorts between the two employers”. 18
On the facts, the Labour Court concluded that the anticipated secondary st rikes would
have no direct or indirect effect on Sibanye’s business.19 Accordingly, the Labour Court
declared the secondary strike s unprotected with no order as to costs. 20 Aggrieved by
the outcome, AMCU applied for leave to appeal , which the Labour Court refused with
costs.
Labour Appeal Court
[22] In refusing the petition for leave to appeal, the Labour Appeal Court relied on
section 16(2)(a)(ii) of the Superior Courts Act, 21 to find no exceptional circumstances
and no significant point of law in the appeal since both parties had agreed that the matter
had been rendered moot.22 It dismissed the appeal with costs, including the costs of two
counsel.23
18 Id at para 219 with reference to SALGA v SAMWU [2008] 1 BLLR 66 (LC) (SALGA I).
19 Id at para 262.
20 Id at para 278.
21 10 of 2013.
22 Labour Appeal Court judgment above n 2 at para 24.
23 Id at para 26.
PILLAY AJ
12
[23] However, the Labour Appeal Court endorsed the interpretation in both
SALGA I24 and SALGA II25 that section 66(2)(c) imports a proportionality test to “weigh
the effect of the secondary strike on the secondary employer and the effect of the nature
and extent of the secondary strike on the business of the primary employer”.26 Referring
to the judgment of the Labour Court, the Labour Appeal Court settled on the
proportionality principle in the following terms:
“There can be little doubt that in this paragraph the learned J udge clearly placed
emphasis upon economic consequences of a secondary strike for the secondary
employer. The weight to be accorded to this set of factors in the balancing exercise is
a factual determination which will vary from case to case. The jurisprudence clearly
mandates a proportionality assessment in which a court is enjoined to weigh the
reasonableness, nature and extent of the secondary strike against the effect of the
secondary strike on the business of the primary employer. This establishes that the
economic consequences for the secondary employer must be taken into account. It
follows that no further judgment of this C ourt is required to set out the nature of the
proportionality enquiry. Manifestly, there may be different factual applications of this
enquiry. The evaluation of the outcome thereof will depend upon a live dispute which
would then require the attention of the Labour Court and, if necessary, this Court.”27
24 Id at para 20, citing SALGA 1 above n 18 at para 16:
“In short, whether or not a secondary strike is protected is determined by weighing up two
factors – the reasonableness of the nature and extent of the secondary strike (this is an enquiry
into the effect of the strike on the secondary employer and will require consideration, inter alia,
of the duration and form of the strike, the number of employees involved, their conduct, the
magnitude of the strike’s impact on the secondary employer and the sector in which it occurs)
and, secondly, the effect of the secondary strike on the business of the primary employer, which
is, in essence, an enquiry into the extent of the pressure that is placed on the primary employer.”
25 Labour Appeal Court judgment id at para 21, citing SALGA 1I above n 11 at para 10 where it held that “[u]nder
the head of proportionality, the court must weigh the effect of the secondary strike on the secondary employer and
the effect of the nature and extent of the secondary strike on the business of the primary employer”. The remainder
of para 10 of SALGA II provides:
“The sub-section does not require actual harm to be suffered by the primary employer but that
there must be the possibility that it may. The harm that the employer may suffer is not required
to be d irect. It may be harm that indirectly affects the business of the primary employer. It
would, therefore, in every case require a factual inquiry to determine whether or not the possible
effect the secondary strike will have on the business of the primary employer is reasonable. The
harm that may be suffered by the secondary employer must be proportional to the possible effect
the secondary strike may have on the business of the primary employer.”
26 Labour Appeal Court judgment id at para 21, quoting from SALGA II above n 11 at para 10.
27 Id at para 24.
PILLAY AJ
13
In this Court
Applicants’ submissions
[24] AMCU submits that harm to the secondary employers is not a consideration
under section 66(2)(c) , properly interpreted. At least, it should not be given as much
weight as the Labour Court accorded to it . Further, grouping together the secondary
employers to assess the harm caused to the primary employer by the secondary strikes,
is the incorrect approach and contrary to SALGA I. Additionally, AMCU argues that
the Labour Court’s approach in finding that, based on past behaviour, AMCU members
would likely resort to violence which amounted to collective guilt, is irreconcilable with
the constitutional right to engage in strike action. AMCU relies on the judgments of the
Labour Court in Hextex28 and Billiton,29 which disavowed a proportionality assessment.
Respondents’ submissions
[25] The second respondent objects to this Court’s jurisdiction being engaged. It
contends that no constitutional issue is raised. Furthermore, n o inte rpretation of
section 66(2)(c) is necessary because, in its view, SALGA I sets out the correct approach
to applying the section. It submits further that the matter is moot because the strike
action has since ceased , and thus, the matter does not warrant consideration by this
Court.
[26] The third, fourth, sixth, seventh, eighth and tenth respondents accept that this
matter raises constitutional issues an d that this Court has jurisdiction. However, they
contend that the appeal should have been lodged against the decision of the Labour
Appeal Court, not that of the Labour Court. They resist the application on the further
grounds of mootness, that it is not of general public importance, and that in the light of
SALGA I and SALGA II, the applicants’ argument that section 66(2)(c) does not require
harm nor does it import a proportionality analysis, lacks prospects of success.
28 Hextex v SA Clothing and Textile Workers Union (2002) 23 ILJ 2267 (LC).
29 Billiton Aluminium SA Ltd v National Union of Metalworkers of SA (2001) 22 ILJ 2434 (LC) (Billiton I).
PILLAY AJ
14
Jurisdiction, mootness and leave to appeal
[27] This dispute involves the interpretation of provisions of the LRA which give
effect to section 23 of the Bill of Rights.30 It engages this Court’s jurisdiction.
[28] Initially, AMCU brought its application for leave to appeal against the
judgment of the Labour Court only. Now AMCU seeks leave to appeal against the
judgments of both the Labour Court as well as the Labour Appeal Court. But AMCU
does so only in its heads of argument. AMCU makes no formal application for
condonation. Unsurprisingly, the respondents 31 oppose the application for leave to
appeal on the grounds of both non-compliance with the rules and mootness.
[29] Although the application does not comply with rule 19(2) and (3) of the Rules
of this Court, the respondents had notice in AMCU’s heads of argument of the latter’s
intention to include the judgment of the Labour Appeal Court in this application for
leave to appeal. Furthermore, full argument was presented on th e discrete question of
law.
[30] The Labour Appeal Court concluded that the matter was moot. 32 I agree.
However, the interests of justice standard applies for determining both condonation and
whether a moot matter should be heard. 33 If leave to appeal is granted, the decision
would clarify the approach to secondary strikes, for the parties and others in the labour
relations community. A judgment would also resolve disputes, if any, between different
30 National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3)
SA 1 (CC); 2003 (2) BCLR 154 (CC) at para 14. See also section 167(3)(b)(i) of the Constitution.
31 The second, third, fourth, sixth, seventh, eighth and tenth respondents.
32 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited [2015]
ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) at para 83.
33 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and
Exploitation SOC Limited [2020] ZACC 5; 2020 (4) SA 409 (CC); 2020 (6) BCLR 748 (CC) at para 48 and
President of the Republic of South Africa v Democratic Alliance [2019] ZACC 35; 2020 (1) SA 428 (CC); 2019
(11) BCLR 1403 (CC) at para 17.
PILLAY AJ
15
courts.34 The issue is both important and complex. The prospects of success are
reasonable.35 Leave to appeal is therefore granted against the judgments of both the
Labour Court and the Labour Appeal Court.
The issues
[31] Essentially, this appeal turns on the substantive requirements for lawful
secondary strike s in terms of section 66(2)( c).36 Specifically, the question raised is
whether section 66(2)(c) imports the principle of proportionality in assessing the
lawfulness of secondary strikes. More specifically, the question is whether
section 66(2)(c) factors in a balancing of the impact of secondary strikes on secondary
employers, on the one hand, with their effect on the primary employer on the other hand.
Thus, if secondary strikes impact disproportionately harshly on secondary employers,
as a party uninvolved in the primary strike, would secondary employers be entitled to
interdict the secondary strikes under section 66(3)?
[32] AMCU raises two subsidiary issues relating to the form of secondary strikes.
First, in assessing the reasonableness of multi -employer secondary strikes, should the
impact on secondary employers be considered individually or collectively ? Second,
should interdicts against violence in the past and violence during the primary strike be
taken as factors informing the assessment of compliance with section 66(2)(c)?
[33] As the matter is moot, the brief summary of the facts and arguments above are
intended to set the scene for what is exclusively an exercise in interpreting
sections 66(2)(c) and (3). Any references to the facts will be purely to contextualise
34 MEC for Education, Kwazulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
(Pillay) at para 32 and Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (3)
SA 925 (CC); 2001 (9) BCLR 883 (CC) at para 11.
35 POPCRU v SACOSWU [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) at para 44.
36 Section 66(1) of the LRA reads:
“In this section ‘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, employed within the registered scope of that council, have a material interest in that
demand.”
PILLAY AJ
16
legal principles. For this interpretative exercise, my starting point is the Constitution,
which in turn invites me to look to international law. Together, they underpin the
interpretation.
Section 23 of the Constitution
[34] The analysis of section 66(2)(c) begins with an appreciation that the LRA seeks
to give effect to section 23 of the Constitution. 37 Contextualising the interpretation
within the constitutional framework is necessary to acknowledge the elevated status that
collective bargaining and the right to strike enjoy under our current democratic
dispensation. The right to strike is constitutionalised because it is a recognised human
rights response to slavery, servitude and forced labour.
37 Section 23 of the Constitution reads:
“(1) Everyone has the right to fair labour practices.
(2) Every worker has the right
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right
(a) to form and join an employers’ organisation; and
(b) to participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers' organisation and employer has the right to engage in
collective bargaining. National legislation may be enacted to regulate collective
bargaining. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).
(6) National legislation may recognise union security arrangements contained in collective
agreements. To the extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).”
PILLAY AJ
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[35] Self-evidently, the preamble to the LRA, the LRA’s purpose outlin ed in
section 1,38 and its approach to interpretation articulated in section 3,39 acknowledge the
supremacy of the Constitution. These provisions, read with chapters two, three, four
and six of the LRA respectively, regulate freedom of association, the form and
functioning of collective bargaining, the regulation of strikes and lockouts and the
regulation of trade unions and employer s’ organisations. Together, they establish the
fundamentals to enable effective collective bargaining foreshadowed in
section 23(5)-(6) of the Constitution.
[36] Conceptually, the scheme of the LRA does not create a statutory duty to compel
bargaining at particular levels (e.g ., at plant, company or national levels). Nor does it
prescribe what issues should be bargained. Instead, t he model adopted “allows the
parties, through the exercise of power, to determine their own arrangements. The
exercise of power, or indeed persuasion, is given statutory impetus by the draft Bill ’s
provision for organisational rights and a protected right to strike.”40 In other words, the
38 Section 1 of the LRA states:
“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.”
39 Section 3 of the LRA states:
“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”
40 Explanatory Memorandum to the Draft Negotiating Document in the Form of a Labour Relations Bill GN 97
GG 16259, 10 February 1995 (Explanatory Memorandum) at 12 1. Below, I explain my reliance on the
Explanatory Memorandum.
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scheme renders the right to bargain collectively in section 23 organi sationally
enforceable.
[37] This model of collective bargaining in the LRA seeks to create a particular
balance to level the rights of trade unions with employers to enable the effective
exercise of power during collective bargaining. Collective bargaining is pre-eminently
the means for determining the terms and conditions of employment. Beyond a basic
floor of statutory rights, wages and working conditions are determined largely by
collective bargaining. Thus, sight should not be lost of the instrumental and
transformative role of collective bargaining processes to remedy inequality,
discrimination and poverty in the workplace. Consequently, courts must be cautious
when interpreting, applying and limiting the constitutional rights to bargain collectively
and to strike , as enabled under the LRA . Impeding employees’ rights to bargain
collectively and to strike, could blunt their principal weapons in the struggle to improve
their livelihood to overcome centuries of discrimination. Economic hardship for the
employer is a predictable consequence of strikes. So is the standard “no work, no pay”
rule for the employees. Notwithstanding this, the LRA institutionalises power-play as
a driver of collective bargaining. 41 Therefore, prudence must prevail before the rights
to bargain collectively and to strike are weakened.
[38] That said, no right, including the right to strike, is absolute. Limitations on the
right to participate in a secondary strike arise from both the Constitution and the LRA ,
although any limitation must comply with section 36 of the Constitution. And when
interpreting the LRA, the Court must promote the spirit, purport and objects of the Bill
of Rights. 42 Additionally, t hree provisions direct us to seek out the stance of the
International Labour Organisation (ILO) on secondary strikes.
41 Ex parte Chairman 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) at 795.
42 Section 39(2) of the Constitution.
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International law
[39] Section 233 of the Constitution states:
“When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with internation al law over any
alternative interpretation that is inconsistent with international law.”
[40] Section 1(b) of the LRA 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—
. . .
(b) to give effect to obligations incurred by the Republic as a member state
of the International Labor Organisation.”
[41] Section 3 of the LRA directs that—
“(a)ny person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the
Republic.”
[42] On 19 February 1996, South Africa rati fied the ILO Conventions on Freedom
of Association and Protection of the Right to Organise (Convention No. 87)43 and the
Right to Organise and Collective Bargaining (Convention No. 98).44 Both conventions
remain in force and are binding.
43 Freedom of Association and Protection of the Right to Organise Convention, 9 July 1948.
44 Right to Organise and Collective Bargaining Convention, 1 July 1949.
PILLAY AJ
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[43] Neither convention expressly confers a right to strike. However, articles 3 and
10 of Convention No. 8745 inspire both the Committee on Freedom of Association and
the Committee of Experts on the Application of Conventions and Recommendations
(“the Committee of Experts”) to progressively develop principles on the right to strike.
Article 3 sets out the right of workers’ organi sations to organise their activities and to
formulate their programmes. Article 10 recognises the objective of workers’
organisations to further , and defend, the interests of workers .46 The Committee of
Experts acknowledges the competing interests implicated during strikes when it
observes:
“Strikes are essential means available to workers and their organi sations to protect
their interests, but there is a variety of opinions in relation to the right to strike. While
it is true that strike action is a basic right, it is not an end in itself, but the last resort for
workers’ organisations, as its consequences are serious, not only for employers, but
also for workers, their families and organisations and in some circumstances for third
parties.”47
[44] Concerning secondary strikes, the Committee of Experts adopts the following
stance:
“With regard to so -called ‘sympathy’ strikes, the Committee considers that a general
prohibition of this form of strike action could lead to abuse, particularly in the context
of globali sation characteri sed by increasing interdependence and the
internationalisation of production, and that workers should be able to take such action,
provided that the initial strike they are supporting is itself lawful.”48
45 International Labour Organisation “Giving Globali sation a Human Face” (conference report presented at the
101st session of the International Labour Conference, Geneva, 2012) at 117 and International Labour Organisation
“Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Commi ttee of the
Governing Body of the ILO ” 5 ed (International Labour Office, Geneva 2006) (Freedom of Association: Digest
of Decisions) at paras 520-7.
46 Giving Globalisation a Human Face id at 117.
47 Id (emphasis added).
48 Id at para 125.
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[45] Similarly, the Committee on Freedom of Association regards secondary strikes
to be protected by international labour law. In its opinion—
“[a] general prohibition of sympathy strikes could lead to abuse and workers should be
able to take such action provided the initial strike they are supporting is itself lawful.”49
[46] By 2017, the ILO position was categorical:
“The position of the ILO on this issue has been very clear: sympathy strikes should be
permitted subject to the sole requisite that the original strike is lawful.”50
[47] This is not to suggest that sympathy strikes should be afforded utterly unfettered
protection. The Committee of Experts recognises the importance of sympathy strikes
but emphasises that the justification for recourse to this type of strike should be
specified.51 Typical of international standards, the ILO recommends a minimum
requirement for sympathy strikes.
[48] At this point , it is convenient to note the following explanation that Cooper
tenders for the different terminology:
“In broad terms, what is alternatively called sympathy, secondary or solidarity action
refers to industrial action taken by workers of an employer who is not directly involved
in a dispute (the secondary employer), in support of workers employed by the employer
in the dispute (the primary employer). The terms secondary, sympathy or solidarity,
although often used interchangeably, are not ideologically ne utral: the terms
‘sympathy’ and ‘solidarity’ tend to emphasi se workers ’ interests, while the term
‘secondary’ emphasises the relationship between employers.”52
49 Freedom of Association: Digest of Decisions above n 45 at para 534.
50 García “The Right to Strike as a Fundamental Human Right: Recognition and Limitations in International Law”
(2017) 44 Revista Chilena de Derecho 781 at 796-7.
51 Cooper “Sympathy Strikes” (1995) 16 Industrial Law Journal 759 at 759 , citing International Labour
Organisation “Report of the Committee of Experts Freedom of Association and Collective Bargaining”
(conference report presented at the 81st session of the International Labour Conference, Geneva 1994) at 74.
52 Cooper id at fn 1.
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[49] The Committee of Experts , established in 1926, monitors compliance by
member states with the conventions and recommendations. It offers impartial, technical
assessments regarding the status of the application of international labour standards. 53
As such, its opinions are advisory or “soft law” .54 Of course , underestimating the
considerable moral authority of these supervisory bodies in the international arena
would be a mistake.55 Nevertheless, the Committee of Experts acknowledges that since
1990 its terms of reference do not allow it to give “definitive inter pretations of
Conventions, competence to do so being vested in the International Court of Justice by
article 37 of the Constitution of the ILO”.56 Its “opinions and recommendations are not
binding within the ILO supervisory process and are not binding outside the ILO unless
an international instrument expressly establishes them as such or the Supreme Court of
a country so decides of its own volition” .57 The stance of the Committee of Experts is
that “in so far as its views are not contradicted by the In ternational Court of Justice,
they should be considered as valid and generally recognised”.58
[50] Enforcement of ILO standards is achieved by member states, including our
own, ratifying the standards and giving effect to them in national constitutions:
“Freedom of association is guaranteed in almost all national Constitutions. In most
cases, the Constitution provides that this freedom shall be exercised in accordance with
the law. Most Constitutions also provide for a number of exceptions, in particular in
relation to security forces, or leave the determination of exceptions to the law. Specific
references to the right to freely form, to join or not to join trade unions are also found
53 International Labour Organisation “Application of International Labour Standards 2020: Report of the
Committee of Experts on the Application of Conventions and Recommendations” (conference report presented at
the 109th session of the International Labour Conference, Geneva, 2020) (Application of International Labour
Standards) at 11.
54 International Labour Organisation “Collective Bargaining in the Public Service: A Way Forward” (conference
report presented at the 102nd session of the International Labour Conference, Geneva, 2013) at 2 .
55 Application of International Labour Standards 2020 above n 53 at 11.
56 International Labour Organisation “Report of the Committee of Experts on the Application of Conventions and
Recommendations” (conference report presented at the 102nd session of the International Labour Conference,
Geneva 2013) at 10.
57 International Labour Organisation “Collective Bargaining in the Public Service: A Way Forward” (conference
report presented at the 102nd session of the International Labour Conference, Geneva 2013) at 2.
58 Id at 2.
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in 142 Constitutions. Furthermore, the right to strike is constitutionally protected in 93
countries.”59
[51] Significantly, fewer countries constitutionalise the right to strike than the right
to freedom of association. And those countries that permit secondary strikes regulate
them to a greater degree than primary strikes. 60 Comparative information about
secondary strikes “reveals a spectrum of national positions, ranging from a broadly
permissive stance in countries such as Greece, Finland, Norway and Sweden, to those
that do not recognise or permit it” , such as the United Ki ngdom.61 In those countries
that do permit secondary strikes, something more than the bare minimum of the
lawfulness of the original strike is anticipated. Conceptually, secondary strikes
distinguish themselves by virtue of their relationships with the pr imary strike. In
countries like Spain, Italy and France , which constitutionalise the right to strike, the
requirement ranges “from a professional or occupational interest ” to “a sufficient
interest”.62 Significantly, “[i]n all three jurisdictions the cour ts have played a key role
in giving content to the definition, at times liberalising and at other times limiting it”.63
[52] Before considering how South Africa gives effect to the constitutional right to
strike in the LRA, a slight detour to the United Kingdom will give some perspective to
the degree to which South Africa complies with ILO standards and the opinions of the
Committee of Experts on secondary strikes.
[53] Since 1989, the Committee of Experts repeatedly criticised the
United Kingdom’s non -observance of Convention No. 87 by outlawing secondary
59 Giving Globalisation a Human Face above n 45 at 4 and 50, specifically fn 264.
60 Seady and Thompson “Strikes and Lockouts” in Thompson and Benjamin South African Labour Law (2020) 1
at 301.
61 National Union of Rail, Maritime and Transport Workers v the United Kingdom [2014] ECHR 366 ( RMT v
UK) at para 91.
62 Cooper above n 51 at 764.
63 Id.
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strikes.64 The European Committee of Social Rights has also criticised this stance.65
Matters came to a head in RMT v UK. The trade union, RMT, with a membership of
more than 80 000 employees in the transport industry , challenged the blanket ban on
secondary strikes.66
[54] On the principle of proportionality, RMT contended that the absolute ban
completely eschewed any balancing of the competing rights and interests,
countenancing no differentiation between situations. In contrast, t he Government
defended the Legislature’s preference for a uniform rule – a total ban – persisting that a
less restrictive rule would be impracticable and ineffective.67
[55] The European Court of Human Rights (ECtHR) held that the ban on secondary
strikes in the United Kingdom was a n interference with the right to freedom of
association in article 11 of the European Convention on Human Rights68 (ECHR), thus
acknowledging indirectly that the right to strike, as embodied in the right to freedom of
association, includes secondary strikes . However, the ECtHR went on to qualify that
the interference was justified. It found that interference with freedom of association in
the circumstances of that case was not especially far -reaching. Having regard to “the
breadth of the margin of appreciation in this area” the Court rejected RMT’s arguments
64 RMT v UK above n 61 at paras 32-3.
65 Id at paras 35-7.
66 Id at paras 6-7.
67 Id at para 100.
68 Freedom of association under article 11 of the European Convention on Human Rights, 4 November 1950
(ECHR) reads as follows:
“(1) Everyone has the right to freedom of peaceful assembly and to freedom of association
with others, including the right to form and to join trade unions for the protection of
his interests.
(2) No restrictions shall be placed on the exercise of these rights other th an such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration of the State.”
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on trade union solidar ity and efficacy. 69 Preferring the Government ’s position, the
ECtHR reasoned that—
“by its nature secondary action may well have much broader ramifications than primary
action. It has the potential to impinge upon the rights of persons not party to the
industrial dispute, to cause broad disruption within the economy and to affect the
delivery of services to the public.”70
[56] The ECtHR concluded that the absolute ban on solidarity strikes was not
disproportionate, but was necessary in a democratic society. In passing, the margin of
appreciation doctrine is at best doubtful, if not irrelevant for our purposes, considering
that our approaches to constitutional limitation and interpretation are prescribed under
sections 36 and 39 of the Constitution. Furthermo re, it will become clear, if it is not
already so from the exposition of the purpose and aims of the LRA above, that
Parliament was at pains to give effect to the Constitution and international law.
Interpreting the LRA
[57] In Mansingh,71 this Court helpfully recalled the approach to interpretation of
our negotiated Constitution:
“It is well-established that courts need not look to the drafter’s intention when engaging
in constitutional (or statutory) interpretation. However, as stated above, we must adopt
a purposive reading of section 84(2) (k). When there is documentary evidence
regarding that purpose, we may, in appropriate circumstances, have regard to such
69 The doctrine of the margin of appreciation has its genesis in international human rights law , and has evolved
through the jurisprudence of the ECtHR. This legal doctrine is used to assess whether state parties to the ECHR
should be sanctioned for limiting the enjoyment of rights. The assessment involves a balancing of individual and
group interests with the national interest to resolve conflicts. Underpinning the margin of appreciation doctrine
are principles of deference, subsidiarity and precedent. Inso far as the doctrine can impede constitutional
transformation, it should be rejected. See, in respect of the doctrine generally and its specific applications
Kratochvíl “The Inflation of the Margin of Appreciation by the Europea n Court of Human Rights” (2011) 29
Netherlands Quarterly of Human Rights 324.
70 RMT v UK above n 61 at para 82.
71 Mansingh v General Council of the Bar [2013] ZACC 40; 2014 (2) SA 26 (CC); 2014 (1) BCLR 85 (CC) citing
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
paras 17-26.
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evidence – the travaux préparatoires. To the extent that the intention of the panel of
experts is relevant, it supports the reasoning set out above.”72
[58] Recourse to travaux pr éparatoires (preparatory works) 73 was first had in
Makwanyane74 in relation to the Constitution:
“Our Constitution was the product of negotiations conducted at the Multi -Party
Negotiating Process. The final draft adopted by the forum of the Multi -Party
Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party
Negotiating Process was advised by technical committees, and the reports of these
committees on the drafts are the equivalent of the travaux préparatoires relied upon by
the international tribunals. Such background material can provide a context for the
interpretation of the Constitution and, where it serves that purpose, I can see no reason
why such evidence should be excluded. The precise nature of the evidence, and the
purpose for which it may be tendered, will determine the weight to be given to it.”75
[59] This Court continues to support appropriate recourse to preparatory works:
“Background evidence may , however, be useful to show why particular provisions
were or were not included in the Constitution. It is neither necessary nor desirable at
this stage in the development of our constitutional law to express any opinion on
whether it might also be relevant for other purposes, nor to attempt to lay down general
principles governing the admissibility of su ch evidence. It is sufficient to say that
where the background material is clear, is not in dispute, and is relevant to showing
why particular provisions were or were not included in the Constitution, it can be taken
into account by a Court in interpreting the Constitution. These conditions are satisfied
in the present case.”76
72 Mansingh id at para 27.
73 In Mansingh id at fn 50, this Court defined the “ travaux préparatoires” as “the official documents recording
the negotiations, drafting and discussions during the process of creating a legal instrument or Constitution” .
74 S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) (Makwanyane).
75 Id at para 17 (emphasis added).
76 Mansingh above n 71 at para 27 quoting Makwanyane id at para 19 (emphasis added).
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[60] My purpose for having recourse to the Explanatory Memorandum is limited to
acknowledging the genesis of the LRA as a “ [d]raft negotiating document in the form
of a Labour Relations Bill”,77 to glean insights into the meaning of section 66(2)(c).
Cooper78 explains:
“Arising from concerns by the Minister of Labour and employers that solidarity action
needs to be clearly defined in the law, proposals were made in NEDLAC which
significantly modified the draft Bill’s provisions regarding sympathy strikes .
Underlying the proposals is the compromise agreement between labour and business
that a balance should be struck between the functionality of sympathy strikes and their
meaningfulness. In other words while they should be functional to collective
bargaining and thus restricted in some way, this should not undermine their purpose as
instruments of worker solidarity. The proposed provisions sought to limit solidarity
strikes through requiring that there be an economic connection between the primary
and secondary employers for a protected solidarity strike. In other words what was
envisaged was the introduction of the ally doctrine.”79
[61] In the LRA the negotiating partners jettisoned the ally doctrine because it
severely restricted secondary strikes to the point of virtually outlawing them. 80
Narrowly defined, an ally would be an associated or take -over entity of the primary
employer or an entity having a direct link with th e primary employer. Somewhere
between the outright outlawing of secondary strikes and altruism , the negotiating
partners sought to attain a balance. Unsurprisingly, the LRA shows traces of the
contestation for the best possible dispensation by the negoti ating partners for their
respective constituencies. Section 66(2)(c) does not escape this general observation .
77 Stated in the full title of the Labour Relations Bill, namely “Draft Negotiating Document in the Form of a
Labour Relations Bill”.
78 The Explanatory Memorandum above n 40 at 112 records Ms Cooper to be a researcher who assisted the
Ministerial Legal Task Team that was formed “to overhaul the laws regulating labour relations and to prepare a
negotiating document in draft Bill form to initiate a process of public discussion and neg otiation by organised
labour and business and other interested parties”.
79 Cooper above n 51 at 782.
80 Id at 762-3.
PILLAY AJ
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Thus, when interpreting the LRA , fidelity to both the text 81 and the context of the
negotiation is necessary.
[62] In his lucid dissent (the second judgment), my colleague Jafta J’s literal
interpretation of section 66(2)(c) accords closely with the ILO’s position in saying that
secondary strikes should be subject only to the requirement that the primary strike be
lawful.82 However, a literal interpretation misses out on the nuances to the text that
have their genesis in the context of a “Draft Negotiating Document in the Form of a
Labour Relations Bill” and a constitutionalised right to strike. Furthermore, the ILO
standard sets a minimum requirement. Manifestly, the ILO prescribe s neither the
procedural prerequisites for embarking on secondary strikes or any other substantive
requirements. Th ose are matters for sovereign states to determine in national
legislation. Section 66(2)(c) meets the ILO’s minimum requirement that the primary
strike must be lawful but adds procedural and other requirements consistent with the
negotiations and the Constitution.
Strikes under the LRA
[63] The scheme of the LRA, in regulating strikes, aims to provide clear procedural
requirements. Once they are met, employees may lawfully embark on peaceful strikes.
Interference in the power -play between parties engaged in a lawful strike is off limits
and limiting collective bargaining that complies with the rules of engagement is a hard
row to hoe under the LRA.
[64] Secondary strikes replicate the pre -eminence of collective bargaining and the
right to strike. Once a trade union fulfils the formal requirements prescribed in
section 66(2)(a) and (b), paragraph (c) stipulates the substantive requirements. Unlike
81 Bertie van Zyl (Pty) Ltd v Minister for Safety and Security [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009 (10)
BCLR 978 (CC) (Bertie van Zyl) at para 22.
82 See [44].
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29
the broad scope of common law interdicts, 83 the text of section 66(3) narrows the
grounds for interdicts as follows:
“Subject to section 68(2) and (3), a secondary employer may apply to the Labour Court
for an interdict to prohibit or limit a secondary strike that contravenes subsection (2).”
[65] Section 68(2) and (3) 84 regulate notice and other procedural requirements for
interdicting a strike. And interdicting a secondary strike that complies with t he
requirements of section 66(2)(c) is impermissible.
[66] When assessing compliance with section 66(2)(c) , one cannot afford to
overlook the differences between strikes85 and secondary strikes.86 Substantively, a key
83 Hotz v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA) at para 29 states:
“The law in regard to the grant of a final interdict is settled. An applicant for such an order must
show a clear right; an injury actually committed or reasonably apprehended; and the absence of
similar protection by any other ordinary remedy. Once the applicant has established the three
requisite elements for the grant of an interdict the scope, if any, for refusing relief is limit ed.
There is no general discretion to refuse relief.” (Emphasis added.)
84 Section 68(2)-(3) of the LRA reads:
“(2) The Labour Court may not grant any order in terms of subsection (1)(a) unless
48 hours’ notice of the application has been given to the res pondent: However, the
Court may permit a shorter period of notice if—
(a) the applicant has given written notice to the respondent of the applicant’s
intention to apply for the granting of an order;
(b) the respondent has been given a reasonable opportunity to be heard before a
decision concerning that application is taken; and
(c) the applicant has shown good cause why a period shorter than 48 hours
should be permitted.
(3) Despite subsection (2), if written notice of the commencement of the proposed strike
or lock-out was given to the applicant at least 10 days before the commencement of
the proposed strike or lock-out, the applicant must give at least five days’ notice to the
respondent of an application for an order in terms of subsection (1)(a).”
85 Section 213 of the LRA defines “strike” to mean:
“[T]he 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.”
86 Section 66(1) of the LRA defines “secondary strike” to mean:
“[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, employed within the registered
scope of that council, have a material interest in that demand.”
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30
distinction is that employees engaged in secondary strikes cannot bargain with the ir
own employer for their own benefits. By definition, the secondary strike must be in
support of the primary strike. While the secondary strike itself is intended to induce the
primary employer to bargain with its employees, nothing stops the secondary employer
and its employees engaging each other to achieve that inducement. In other words, they
do not have to be passive bystanders, helplessly weathering the secondary strike.
[67] The procedural requirements for a strike are infinitely more onerous than for a
secondary strike. A strike must be preceded by conciliation, deadlock and notice to the
employer. All this takes time before a strike can commence. Four months lapsed
between AMCU commencing negotiations and the primary strike. In the case of
secondary strikes, no conciliation, no deadlock, and no dialogue are prescribed as
prerequisites. Once the primary strike is lawful, a ll that remains to be done is for the
trade union to give seven days ’ notice to the secondary employer of its employees ’
intention to embark on a secondary strike. 87 Cumulatively, the absence of prior
engagement, the brevity of the notice and the fact that the secondary employer and its
employees hav e no interest in the outcome of the primary strike , distinguish the
secondary employer from the primary employer. Secondary employers h aving
employees who belong to other trade unions that are not engaged in the secondary strike,
adds another dynamic to a situation already complicated b y multi -dimensional
power-play.
[68] Secondary employers, who have no direct or indirect effect on collective
bargaining at t he primary employer, have no control whatsoever over the process.
Without section 66(3), the scheme of the LRA regarding secondary strikes would leave
the secondary employer with little leverage to safeguard its interests . Section 66(3) is
a shield in the hands of secondary employers who would otherwise have no means of
protecting their enterprises. What it is not, is a weapon to annihilate the constitutional
right to strike. Thus, when invoking section 66(3), ways of limiting the secondary strike
87 Section 66(2)(b) of the LRA.
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31
should be investigated first before its outright prohibition is sought. In Samancor,88 the
Labour Court gave its ruling on what would be proportional before anticipating a
settlement agreement limiting the secondary strikes, which it made an order of th at
Court.
[69] Section 66(2)(c) seeks to attain a balance between different models of
regulating secondary strikes recognised by the ILO. To section 66(2)(c) I turn.
Section 66(2)(c) of the LRA
[70] SALGA I and SALGA II are currently authoritative decisions which maintain
that section 66(2)(c) invites a proportionality assessment when considering whether a
secondary strike can be said to be reasonable. Proportionality implies that a secondary
strike that impacts more harshly on the secondary employer than on the primary
employer would be disproportionate, and therefore, unreasonable and unlawful.
Furthermore, if the harm to the secondary employer is so immense, then that fact alone
should spare the secondary employer from enduring a secondary strike , even if the
secondary strike has an effect on the primary employer . This case seeks to confirm or
refute that interpretation of section 66(2)(c), which the Labour Court upheld.
[71] Section 66(2)(a)-(c) reads:
“(2) No person may take part in a secondary strike unless—
(a) the strike to be supported complies with the provisions of section s 64
and 65;
(b) the employer of the employees taking part in the secondar y strike or,
where appropriate, the employers’ organisation of which that
employer is a member, has received written notice of the proposed
secondary strike at least seven days prior to its commencement; and
88 Samancor Ltd v National Union of Metalworkers of SA (1999) 20 ILJ 2941 (LC) (Samancor) at paras 32-3 and
35.
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32
(c) the nature and extent of the secondary 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.”
[72] Unlike RMT v UK, in which the challenge was to the compliance of national
legislation with international law,89 this application is not a challenge to the validity of
section 66(2)(c), but rather concerns its interpretation and application. Section 66(2)(c)
is intended to strike a balance between employee and employer rights, and between
South Africa’s international and constitutional obligations. And the question is whether
the Labour Court’s interpretation and application of section 66(2)(c) achieve s the
appropriate balance.
[73] Section 66(2)(a) prescribes the procedural prerequisite that the primary strike
must be lawful. This complies with the Committee of Experts’ stipulation of “ the sole
requisite that the original strike is lawful ”.90 Typical of international law, that is a
minimum standard to maximise assent from member states. The lawfulness of the
primary strike is not the only requirement for a lawful secondary strike. Member states
are free to regulate secondary strikes according to their national laws. Research has not
revealed a single member state that imposes no other limitations for a secondary str ike
other than the lawfulness of the primary strike.
[74] Embedded in section 66(2)(c) are at least six substantive requirements that
regulate secondary strikes. These requirements operate as internal or built-in limitations
on the right to participate in a secondary strike.91
[75] First, the critical requirement is for a secondary strike to have “an effect” .
Having an effect on the primary employer is the baseline threshold requirement for a
secondary strike. A secondary strike that c an have no effect, that is entirely altruistic
89 Section 224 of the Trade Union and Labour Relations (Consolidation) Act 1992.
90 García above n 50 at 496-7.
91 Samancor above n 88 at para 2.
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and amounts to “mindless exercises of worker solidarity for the sake of nothing but
worker solidarity”,92 is impermissible. Such solidarity strikes fall on the opposite end
of absolute bans on the secondary strike spectrum and are not a proportional exercise
of the right to strike. Nor is an absolute ban a reasonable and justifiable limitation on
the right to strike. Neither represent any balance whatsoever of the right to strike.
Somewhere between these extremes section 66(2)(c) must find its place.
[76] Second, the words “possible” and “indirect”, used in section 66(2)(c) in relation
to “effect”, set the bar low and wide for a lawful secondary strike. The word “possible”
lowers the threshold to mean something less than probable – not actual93 – but more
than notional. What is required is that t he secondary strike must be capable of having
an effect. It is not necessary to predict with certainty that it necessarily would, but
merely that it could, have an influence on the business of the primary employer.94 The
word “indirect” expands the scope of the possible effect, thus shifting the balance to
favour employee solidarity. However, that is about as far as the section inclines towards
the solidari ty side of the spectrum. The remaining words and phrases rebalance
section 66(2)(c).
[77] Third, the effect of the secondary strike must be “on the business” of the
primary employer. Affecting the business of the primary employer anticipates a nexus
between the business of the primary employer and the secondary strike, and by
92 SALGA I above n 18 at para 10 citing Grogan Collective Labour Law 1 ed (Juta & Co Ltd, Cape Town 2007).
93 SALGA I id at para 22 and SALGA II above n 11 at para 16.
94 Samancor above n 88 at para 24. See also SALGA II id at paras 16-7:
“Mr Brassey also submitted that the secondary strike must bring its influence to bear in some
tangible or material way on the secondary employer who must then put pressure on the primary
employer to compromise or capitulate to the demands of its workers. I cannot agree. There is
no requirement in section 66 of the Act that the secondary employer sho uld exert influence on
the primary employer or that the secondary employer should have the capacity to exert influence
on the primary employer in order to encourage it to compromise or capitulate to the demands
of the workers. What section 66 requires is that the secondary strike should have a possible
direct or indirect effect on the business of the primary employer and that the nature and extent
of the secondary strike should be reasonable in relation to the possible direct or indirect effect
on the business of the primary employer.
In conclusion the contention by the appellant that the secondary strike was unreasonable falls
to be rejected.”
PILLAY AJ
34
extension, the secondary employer and its employees. Impliedly, the nexus must be
such that the secondary strike is reasonably capable of influencing the business of the
primary employer. Such influence would be present, for instance, if there pre -exists a
substantial commercial connection between both businesses. A supplier -customer
relationship would establish a connection if the level of mutual interdependence is
significant. This principle applied in Sealy,95 Samancor, Billiton,96 and Clidet.97 In
SALGA I, the Labour Court found that a secondary strike at municipalities could have
an effect on government at higher levels. 98 Instructive is the Labour Appeal Court’s
approach to unravelling the interconnectedness of enterprises in Samancor99 and
95 Sealy of South Africa (Pty) Ltd v Paper Printing Wood and Allied Workers Union (1997) 18 ILJ 392 (LC).
96 Billiton I above n 29 and Billiton Aluminium SA Ltd v National Union of Metal workers of SA [2003] ZALAC
17; (2003) 24 ILJ 2259 (LAC) (Billiton II).
97 Clidet N.O. 957 (Pty) Ltd v SA Municipal Workers Union (2011) 32 ILJ 1070 (LC) at para 11 states as follows:
“In these circumstances, I fail to appreciate what pressure will be placed on the business of
MTC should the secondary action proceed. The only significant effect that the strike will have
is the inconvenience to the thousands of commuters who rely on the applicant for their daily
transport. They will be inconvenienced no doubt by the primary strike given the absence of
cashiers and the like, but the effect of the secondary strike will be to deny them access to the
transport on which they ordinarily re ly. But the question here is not the extent of any
inconvenience to commuters rather than whether on the test established by section 66, the
applicant can be said to be reasonably capable of exerting pressure on MTC to meet the union’s
demand that its emp loyees should be permanently employed. For the above reasons, in my
view, that question must be answered in the negative.”
98 See SALGA I above n 18 at para 21:
“Given the integrated, co -ordinated and co-operative structure of government as a whole, it is
entirely possible that the withdrawal of municipal services will have at least an indirect, if not
a direct effect on the business of those higher levels of government engaged in the primary
strike, and will thus place pressure on them in the national barg aining process currently
underway.”
99 Samancor above n 88 at paras 29-31 states:
“The two applicants appear to do business together. It appears that some of their plants are
conducted jointly or fall within the scope of management of the first applicant, Samancor.
However, Manganese Metals does not seem to play any significant role in the provisions of
chrome: the mineral which underpins the operations of the primary employer, Columbus. It is
therefore not clear to me that the strike at the plant of Mang anese Metal could possibly have
any direct or indirect effect on the business of Columbus. Even accepting that Manganese Metal
is a wholly owned subsidiary of Samancor, it merely establishes a nexus between it and
Columbus. But a mere nexus which does not have an effect on the primary employer’s business
is insufficient to permit a secondary strike.
As far as Samancor is concerned, it provides at least 80% of the chrome required by Columbus
from its plant in Middelburg. At present Columbus is engaged in a shut-down or a maintenance
programme which has the effect that its furnaces are inoperative or at least one of the m is
inoperative. It will recommence its operations on Monday, 26 July. It has four days’ worth of
stock. Samancor is a partner in the joint venture with Columbus Stainless Steel. It has a stake
in the outcome of the strike, for any further losses which Columbus may suffer will be debited,
proportionally, to its account. It is therefore in a position to influence the business of Columbus
PILLAY AJ
35
Billiton II.100
[78] If a relationship in which the secondary employer is able to influence market
sentiment and ratings agencies that, in turn, impact adversely on the commodity price,
the share price and the valuations of the primary employer , that would be another
example. But the links must be proven. AMCU’s attempt at leading expert evidence
in the Labour Court to prove this effect failed because the witness did not qualify as an
expert. Furthermore, on the facts, the Labour Court found that so many variables
influence share prices – ranging from “macro geopolitical issues to the appointment of
a new chief executive” – that it could not pin down any fall off to the intended secondary
strike alone.101 The evidence was lacking in that instance. Another consideration when
assessing the impact of strikes is th is: a drop in production, and concomitantly, labour
costs induced by th e “no work, no pay principle”, could increase demand and thereby
spike the price of the commodity or goods – paradoxically, a most desirable
consequence of a strike for the industry.
if spurred on by a secondary strike at its plant and mines. The fact that it may have no say in
the day–to-day running of Columbus is not especially pertinent. The strike is not about the
day-to-day operations of Samancor. It is about the wages paid to its NUMSA employees. This
is a matter of capital funding in which Samancor has a real and substantial interest and thus an
incentive to use its influence on the collective bargaining process between Columbus and its
NUMSA employees.
Now that I have found that the secondary strike has a possible direct or indirect effect on the
business of Columbus, I must consider whet her the nature and extent of the strike at the
applicants’ plants and mines was reasonable in relation to the effects of the strike at Columbus
and on Columbus’s business. I do not think that it is necessary to weigh up the damage inflicted
to the applicants against the effect of the strike on the business at Columbus but of course I do
not ignore it. It seems to me that section 66(2) (c) requires me to concentrate on the nature and
extent of the strike, that is the withholding of labour, its timing and ot her ramifications in
relation to the effects which it may have on the business of Columbus. It seems to me that it
would have been reasonable for the respondent to have targeted only the chrome ore mines and
chrome or ferro alloy producing plants which belong to Samancor. Insofar as Manganese Metal
is concerned, the secondary strike at its mines and plants will not have a possible effect on the
business of Columbus. It is therefore clear to me that an interdict should be granted in regard
to the operations of Manganese Metal.”
100 Billiton II above n 96 at para 18 states:
“The conclusion I have reached above that this matter must be decided on the basis that the
appellant does not own any shares in the primary employer - let alone being the majority
shareholder - disposes of the respondent's main case. This is because the respondent’s real case
was based on the assertion that the appellant is the majority shareholder in the primary employer
and, because of that, will intervene in the primary dispute to prot ect its capital investment or
capital funding.”
101 Labour Court judgment above n 2 at para 160.
PILLAY AJ
36
[79] The complexity of relationships between entities in the private and public
sectors militates against pinning down hard and fast “one size fits all” principles about
what is proportional and reasonable . Furthermore, e stablishing cause and effect of
secondary strikes would be challenging at the best of times. 102 More so in motion
proceedings, especially when they are brought urgently, as secondary strike interdicts
usually are. This difficulty presented in Billiton II when the Labour Appeal Court had
to have recourse to Plascon-Evans103 to assess the facts to which to apply section
66(2)(c).104 What the cases cited above show is that it is difficult, but not impossible,
to prove the effect, if any, between a secondary strike and the business of the primary
employer.105 In cases in which the courts found an effect, they refused to interdict the
secondary strikes. The effect does not have to be equal “upon the businesses of the
secondary and primary employers” as suggested in the second judgment106 but
reasonable, as I elaborate below.
[80] Fourth, the assessment of the effect is, unsurprisingly, directed at “the primary
employer”. After all, a secondary strike is by definition “ a strike, or conduct in
102 Id at paras 170-7.
103 Plascon-Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A).
104 Billiton II above n 96 at para 24:
“I am of the view that the version put up by the respondent is not one that is so untenable or that
it so inherently improbable or far -fetched that it would be justified to simply reject it on the
papers. For this reason, and applying the Plascon-Evans approach, it seems to me that the matter
must be decided on the basis of the respondent ’s version. That, therefore, means that it has to
be accepted, for purposes of the determination of this appeal, that Samancor makes a product
called ‘paste’ which it then sell s to the appellant and the latter uses that product to make
‘electrodes’. The respondent's version is also that every week the ‘paste’ is loaded on to trucks
‘at Ferroveld’. However, the difficulty with this part of the respondent's case in this matter i s
that the information placed before the court is not sufficient to justify a conclusion that, based
on the paste issue, the nature and extent of the proposed secondary strike may possibly be
reasonable. No indication has been given as to the size or quantity of the paste that is transported
from the primary employer to the appellant. No indication has been given as to how many
workers employed by the appellant have something to do with the paste. The indication is that
the paste is transported from the primary employer to the appellant weekly. On this information
I am unable to conclude that the nature and extent of the secondary strike may possibly be
reasonable. If I cannot reach such a conclusion, I cannot go on to find that the condition
prescribed by section 66(2)(c) has been met. Since that condition has not been met, the proposed
secondary strike would be unprotected.”
105 See for instance Samancor above n 88 and SALGA I above n 18.
106 See the second judgment at [155].
PILLAY AJ
37
contemplation or furtherance of a strike, that is in support of a strike by other employees
against their employer”.107
[81] Fifth, the reference to the effect on the primary employer does not imply that
the secondary employer is excluded altogether from the assessment. The impact on the
secondary employer comes into the analysis in interpreting whether “the nature and
extent of the secondary strike is reasonable in relation to the effect that the secondary
strike may have”.
[82] Adding the words “and the secondary employer” at the end of section 66(2)(c)
would have fortified the interpretation that reasonableness also applies to the secondary
employer. However, elevating the primary and secondary employers to the same level
would have undermined the definition of secondary strikes which targets the primary
employer. Importantly, it would have decisively and unambiguously shifted the balance
favourably towards the secondary employer. This shift was unlikely to enchant the
trade union parties negotiating the draft Bill . Omitting the words “and the secondary
employer” may be explained as probable resistance from the trade union negotiators to
their inclusion.
[83] Assessing the reasonableness of the secondary strike on the secondary
employer is not disloyalty to the text by subversively reading in the words “and the
secondary employer” at the end of section 66(2)(c). Quite the contrary. The absence
of these words informs the way in which reasonableness of the secondary strike on the
secondary employer will be assessed. That is, not based on parit y with the primary
employer. This approach contextualises the interpretation of the LRA in its genesis as
a negotiated draft Bill.
[84] Irrespective of the reasons, omitting the words “and the secondary employer”
at the end of section 66(2)(c) distinguishes the primary and secondary employer s. In
107 Section 66(1) of the LRA.
PILLAY AJ
38
relation to the primary employer, the secondary strike must have an effect. In relation
to the secondary employer, the secondary strike must be proportional, even if it ha s an
effect on the primary employer. Importantly, the omission imbues section 66(2)(c) with
a degree of flexibility that invites judicial intervention to determine reasonableness case
by case.
[85] Reasonableness is not an abstraction. Instead, it harks back to its roots in the
Constitution, to give effect to section 36 specifically. To be lawful, the secondary strike
must be reasonably capable of having the possible effect. This begins, not with a value
judgement, but with a sound enquiry into the facts. In the circumstances of Samancor,
SALGA I and SALGA II, the courts decided, on the facts, that the secondary strike could
influence the business of the primary employer.108
[86] Furthermore, “reasonable” also qualifies “the nature and extent” of the
secondary strike. This does involve a value judg ement. Conceptually, the phrase “the
nature and extent” in section 66(2)(c) is cast widely so that it includes secondary strikes
in all sectors and industries, private and public, and may take many forms. Factors to
determine the nature and extent of the secondary strike would include the duration and
form of the strike, that is, whether it is a go-slow, intermittent or stay-away strike for a
day or longer; the number of employees involved; their membership of trade unions;
their conduct, including whether it is peaceful or violent; and the sector(s) in which the
primary and secondary strikes occur, that is, whether it is in the private or public sector,
or the retail, agricultural, manufacturing, or mining sectors, and so on.109
[87] It follows that if a secondary strike is incapable of having any effect whatsoever
on the business of a primary employer, that would not be reasonable. That would be
the end of the enquiry. For, the most basic requirement to qualify for a lawful secondary
strike will not have been met. Proving that the nature and extent of a secondary strike
108 SALGA II above n 11 at paras 10-6; SALGA I above n 18 at paras 21-2 and Samancor above n 88 at para 31.
109 Billiton II above n 96 at paras 20-4; SALGA I id at paras 17-9 and Samancor id at paras 29-31.
PILLAY AJ
39
could possibly have an effect on the business of the primary employer requires
evidence. Such evidence will be harder to establish if the link between the primary
employer, and its workers, on th e one hand, and the secondary employer, and its
workers, on the other hand, is weak. After establishing that the secondary strike has an
effect on the business of the primary employer, assessing the nature and effect of the
secondary strike calls for a value judgement.
[88] The phrase “in relation to” in section 66(2)(c) unambiguously anticipates a
comparison. The comparators are firstly, the secondary strike and business of the
primary employer, and secondly, the secondary strike and business of the secondary
employer. The standard prescribed for comparison is reasonableness. Thus, the phrase
“reasonable in relation to” imports proportionality in assessing reasonableness.
Conceptually, proportionality and reasonableness often converge but not neces sarily.
In balancing the right to strike with the rights of primary and secondary employers, all
factors must be considered to determine , not just proportionality, but ultimately,
reasonableness. For reasonableness is the standard or attribute to which t he LRA
aspires for secondary strikes because the right to strike is constitutionally entrenched .
Below, an example will illustrate an instance when proportionality and reasonableness
can be in tension with each other and the right to strike.
[89] Recognising proportionality and reasonableness of the secondary strik e
anticipates some safeguards for secondary employers. Otherwise, they would have no
means of protecting their businesses. Their employees, who are non-unionised or who
belong to trade unions other than the one calling for the secondary strike, may also want
protection. Proportionality l imits the right to participate in a secondary strike and
introduces safeguards to rebalance the rights of secondary employers more favourably
relative to the primary employer.
[90] Assessing the impact of the secondary strike on the business of the primary
employer is a question of fact determined case by case. Assuming , as the second
judgment does, that secondary strikes “ may have some impact but to a l esser degree”
PILLAY AJ
40
than the primary strike,110 that will not be true in every instance. Much would depend,
for instance, on the relationship between the primary and secondary employers, the
number of employees involved in the strikes and whether the businesses of the primary
and secondary employers are interrupted partially or totally. A partial shutdown of the
business of a primary employer could be more greatly impacted by a total shutdown of
the secondary employer who supplies components to the primary employer. On its own,
this fact would discourage interference in the power-play by interdicting the secondary
strike, unless after considering all the factors, some of which are mentioned above, the
impact of the secondary strike on the secondary employer is not only disproportionate
but also unreasonable. In making this assessment, the constitutionalising of the right to
strike and to bargain collectively as the primary means of eliminating poverty and
inequality must weigh in.
[91] Proportionality and reasonableness enquiries invite judicial supervision of the
interpretation and application of the law to the circumstances. Academic opinion
favours “an approach that requires the harm caused to the secondary employer to be
proportional to its likely impact on the business of the primary employer”.111 In the
opinion of Seady and Thompson, the LRA leaves it “to the Labour Court to define the
parameters of protected secondary strikes within the meaning of section 66(2)(c)” .112
Cooper concludes that in “the final analysis however, as i n the foreign jurisdictions
described above, the Labour Court will play a critical role in clearly defining the nature
of this balance”.113
[92] The stance adopted in the second judgment of disavowing a proportionality
assessment is excessively inclined towards protecting altruistic sympathy strikes. Trade
unions and their members would have considerably more leverage. It would topple the
equilibrium that section 66(2)(c) seeks to establish.
110 See the second judgment at [154].
111 Seady and Thompson above n 60 at 328.
112 Id at 328.
113 Cooper above n 51 at 784.
PILLAY AJ
41
[93] Proportionality assessments to determine reasonableness are necessary for
reasons that relate to the parties engaged in secondary strikes, and beyond. Persons
other than the employers and employees involved in the secondary strikes may be
affected if their rights are violated. Jettisoning a proportionality assessment would
exclude access to courts to invite judicial scrutiny when rights under the LRA, the
Constitution and other laws could be implicated.
[94] In the administrative law context, ouster clauses were notorious for concealing
rights violations in our pre -democratic order.114 In the context of labour law, ousting
the courts from assessing proportionality would distort the dispute system design of the
LRA. The LRA anticipates and prescribes peaceful and appropriate forms of dispute
resolution for almost every conce ivable labour dispute. Allowing rights violations to
burgeon without judicial scrutiny of secondary strikes would be out of kilter with th at
design and unwholesome for a constitutional democracy. And denying access to courts
to have the proportionality of secondary strikes assessed could have dire consequences
if those whose rights are violated have to resort to self -help to protect their interests.
Effective management of conflict would be sacrificed.
[95] For these reasons, I respectfully dissociate myself from the view espoused in
the second judgment that section 66(2)(c) occludes a proportionality assessment.
Interpretation applied
[96] By r ecognising that section 66(2)(c) imports a proportionality test to the
reasonableness standard within the provision, it follows that AMCU’s reliance on both
Hextex and Billiton I is misplaced. Neither was followed in SALGA I.115 In fact, both
114 Hoexter “The Principle of Legality in South African Administrative Law” (2004) 4 Maquarie Law Journal
165 at 165-7 and Olayinka “Judicial Review of Ouster Clause Provisions in the 1999 Constitution: Lessons for
Nigeria” (2018) 9 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 138 at 151.
115 In SALGA I above n 18 at paras 14-5:
“To the extent that recent decisions by this Court, for example, Billiton I and Hextex,
respectively discount the effect of a secondary strike on the secondary employer as a relevant
factor, and reject a proportionality requirement as fundamental to the application of
PILLAY AJ
42
were effectively overruled by the L abour Appeal Court in Billiton II,116 SALGA II and
now, in this case.117 In SALGA II, the application of a proportionality assessment was
not debated because “quite properly, neither the appellant nor the union contest[ed] the
proposition that section 66(2)(c) of the Act, imports a proportionality test”. 118 The
Labour Appeal Court went on to apply proportionality to the facts of that case.
[97] Having established that section 66(2)(c) imports a proportionality analysis, I
turn now to consider whether the secondary strikes in this matter were proportionate .
As the matter is moot, I do so purely for the purposes of illustrating how the principles
discussed above would apply to facts as in this case.
[98] Economic loss is a predictable consequence of strikes generally. To give effect
to a lower threshold for tolerance for loss, section 66(2)(c) imports proportionality and
reasonableness. Neither standard limits primary strikes as defined under section 213 of
the LRA.
[99] The Labour Court found that the multi-employer secondary strikes would
individually and collectively cause “irrecoverable” losses. Secondary strikes that wreak
macro-economic havoc , bring industry to a standstill, jeopardise job security, cause
commodity prices to collapse and investors to take flight, would render the secondary
strikes unreasonable. Both the primary and the secondary employers would be affected.
section 66(2), I respectfully disagree with that approach. An assessment of the nature and extent
of the secondary strike clearly contemplates that its impact on the business of the secondary
employer is a fundamental factor, and that an assessment of that impact is required.
Further, the use of the words “reasonable in relation to” in section 66(2)(c), clearly import a
proportionality assessment, not unlike the use of the term “reasonable” in section 36 of the
Constitution in relation to the proportionality assessment of limitations on constitutional rights.”
116 Billiton II above n 96 at para 24.
117 Labour Court judgment above n 2 at paras 19-21.
118 SALGA II above n 11 at para 9:
“In these proceedings, quite properly, neither the appellant nor the union contest the proposition
that section 66(2)( c) of the Act, imports a proportionality test. What is required to be
determined, as the court a quo correctly observed, is the reasonableness of the nature and extent
of the secondary strike (which inevitably involves an enquiry into the effect of the strike on the
secondary employer) in relation to the effect on the business of the primary employer (which
inevitably involves an enquiry into the extent of the pressure placed on the primary employer).”
PILLAY AJ
43
While the primary employer would have the option of resolving the bargaining dispute,
the secondary employers may have no way of influencing that resolution. However, to
succeed in securing an interdict, secondary employers must convince the courts that the
secondary strikes are unreasonable.
[100] In this instance, the secondary strikes were unreasonable because, firstly, they
had no effect on the business of Sibanye. Secondly, the impact of the secondary strikes
on the secondary employers, and beyond, was unreasonably destructive. AMCU’s plan
to limit the secondary strikes to seven days did not mitigate the disproportionate impact
of the secondary strikes. Neither did its suggestion that the secondary employers should
have recourse to replacement labour. Aside from being anathema to trade unions at the
best of times , suggesting replacement labour as a way of limiting the impact of the
secondary strikes was more cynical than practical, considering that implementing it on
seven days’ notice was not doable.
[101] The findings that section 66(2)(c) encompasses proportionality as a standard to
assess the reasonableness of secondary strikes, and that , on the facts, all secondary
strikes in this instance had no effect on the business of the primary employer but would
have had disproportionately devastating effects on the secondary employers, disposes
of the primary issue for determination.
[102] The first subsidiary question about whether the assessment of the effect on the
business of the primary employer should be per individual secondary employer or
collectively is answered with reference to the section. Section 66(2)(c) uses the singular
“secondary strike”. As a general rule of legislative draftin g, the singular includes the
plural.119 Therefore, the binary posed in the subsidiary question is adequately covered
in section 66(2)(c). In each case, the facts will indicate w hat effect, if any, secondary
strikes, individually and collectively , have on t he business of the primary employer.
The answer lies in fact – that is, whether the secondary strike has an effect , rather than
119 Section 6(b) of the Interpretation Act 33 of 1957. See also Gcilitshana v General Accident Insurance Co SA
Ltd 1985 (2) SA 367 (C).
PILLAY AJ
44
in law. As stated above, every secondary strike must have an effect on the business of
the primary employer, otherwise it would be automatically unlawful. On the facts, the
Labour Court found that the secondary strikes, individually and collectively, had no
effect on the business of the primary employer.
[103] However, on principle the Labour Court interpreted a section 66(2)(c) enquiry
into the reasonableness of the secondary strike to prohibit “the grouping together of a
collection of secondary employers in a specific industry and assessing what the
combined effect of a broader industry secondary strike wou ld have on the primary
employer”. In my view, nothing in section 66(2)(c) prohibits a “grouping together”,
aggregation and multi-employer secondary strikes in principle.
[104] If the concern about permitting the aggregation of secondary strikes is their
scale and size, then prohibiting the grouping together is not a solution. For instance, a
holding company with many subsidiaries may be the secondary employer in the same
or multiple industries. Identifying and defining the secondary employer would be a
source of unnecessary conflict when the real issue is the effect of the secondary strike
on the business of the primary employer, irrespective of the identity and size of the
employer. Similarly, a strike at a secondary employer that is a monopoly would also
not addres s the issue of scale, size and impact on the secondary employer and the
economy.
[105] Section 66(2)(c) already offers two strong safeguards against any secondary
strike – aggregated or individual. First, each secondary strike must have an effect on
the business of the primary employer. Any secondary strike that does not have an effect
would be unlawful. Second, secondary strikes individually and cumulatively must meet
the standard of reasonableness to be lawful.
[106] The Labour Appeal Court has used both control s – having an effect and
reasonableness – discerningly. Samancor is the classic example of discerning the
differences between secondary employers who do and those who do not have an effect.
PILLAY AJ
45
Manganese Metals as a wholly owned subsidiary had a nexus with Samancor but
because Manganese Metals provided no chrome, it had no effect on the business of the
primary employer, Columbus. In contrast, Samancor had an effect because it was the
supplier of 80% of the chrome required by Columbus.
[107] These examples show that assessing effect and proportionality are intensely fact
sensitive. What factors would determine whether there is an effect and whether it is
proportional should be left to the courts to decide case by case. Because industries and
services vary greatly, the factors to consider would also vary. I have mentioned some
factors above. A proportionality assessment must also take account of whether the
secondary strikes should be considered singly or cumulatively (grouped together). It is
impossible in this judgment to forecast what effect secondary strikes will have in every
instance to outlaw absolutely the grouping together of secondary strikes for the purposes
of a proportionality assessment. However, it is possible, in a particular circumstance to
limit the grouping together of secondary strikes.
[108] The second subsidiary question, namely whether the prospect of violence is a
consideration when assessing the reasonableness of secondary strikes , turns firstly on
the definition of strikes . The “partial or complete concerted refusal to work, or the
retardation or obstruction of work,” implies that , by definition, a ll strikes must be
peaceful exercises of power to resolve disputes. This is reinforced by section 17 of the
Constitution which guarantees that, “[e]veryone has the right, peacefully and unarmed,
to assemble, to demonstrate, to picket and to present petitions” . Once strikes cease to
be peaceful, they lose the protection of the law. The refore, the prospect of violence
during secondary strikes , prop erly diagnosed, would be a factor in assessing the
reasonableness of a secondary strike. A history of violence accompanying strikes would
found a proper diagnosis , as it did in this case . However, if an interdict to stop the
violence is possible without interfering with the secondary strike, then that should be
the preferred route.
PILLAY AJ
46
Conclusion
[109] This matter raise s a discrete question of law and two subsidiary issues .
Primarily, does section 66(2)(c) import the principle of proportionality in assessing the
reasonableness and the substantive lawfulness of secondary strikes? Our response is
“yes”. Section 66(2)(c) seeks to balance the impact of secondary strikes on secondary
employers, on the one hand, with their effect on the business of the primary employer
on the other hand. Thus, on the one extreme, if secondary strikes have no effect on the
primary employer, or, on the other extreme, if the effect is disproportionately harsh on
secondary employers, they would be entitled to interdict the strike under section 66(3).
This principle of proportionality derives not only from the reasonableness requirement
to be found in section 66(2)(c), but also from the Constitution and international law.
[110] The general rule that costs in labour matters do not follow the result
applies.120 The central issue is a matter of mutual interest to both parties and beyond.
Each party should pay its own costs. The rule also applies to reverse the cost orders in
the Labour Court (in refusing leave to appeal), and the Labour Appeal Court.
Order
[111] The following order is made:
(a) Leave to appeal is granted.
(b) Save as set out below, t he appeal against the judgments of the Labour
Court and the Labour Appeal Court is dismissed.
(c) The costs orders in the Labour Court and the Labour Appeal Court are set
aside.
(d) Each party shall pay its own costs in the Labour Court, the Labour Appeal
Court and this Court.
120 Union for Police , Security and Corrections Organisation v South African Custodial Management (Pty) Ltd
[2021] ZACC 26; 2021 JDR 2220 (CC).
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JAFTA J:
[112] I have had the pleasure of reading the judgment by my colleague Pillay AJ
(first judgment). While I agree that leave should be granted and that the costs order
issued by the court below ought to be set aside, I hold that the appeal on the
interpretation of section 66(2)(c) should have succeeded. I also agree that leave should
be granted despite the fact that the matter has become moot.
[113] AMCU have sought leave to appeal against the decision of the Labour Appeal
Court. The Labour Appeal Court had dismissed AMCU’s appeal against the decision
of the Labour Court in terms of which the secondary strike in which AMCU was to
participate was declared to be unprotected. This declaration was based on the
interpretation of section 66(2)(c) by the Labour Court.
[114] By the time the appeal was heard by the Labour Appeal Court, the matter had
become moot in that AMCU was no longer pursuing secondary strikes. The primary
strike had already been resolved and the need for secondary strikes had fallen away.
Based on this reason alone, the Labour Appeal Court decided to dismiss the appeal.
Background
[115] AMCU commenced a primary strike at various mines owned by Sibanye in
November 2018. That strike continued until April 2019 when it was resolved.
Meanwhile in February 2019 AMCU issued notices for secondary strikes on various
gold mining companies. These were intended to commence on 28 February 2019.
Having received notices, the affected companies instituted, as a matter of urgency,
applications against AMCU in the Labour Court. They all sought an interdict
restraining AMCU fr om going ahead with its secondary strikes. At the heart of the
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dispute was whether the requirements of a secondary strike set out in section 66(2) of
the LRA were satisfied.
[116] This arose because the mining companies contended that the secondary strikes
would have no impact on the businesses of Sibanye, the primary employer. They argued
that the secondary strikes would bring their businesses to a complete halt and, as a result,
the strikes would have a devastating effect on those businesses. They also poin ted out
that the primary strike at Sibanye was accompanied by unlawful acts of violence and
that they sought to prevent violent damage to property and loss of life and limb.
[117] The applications by the mining companies were opposed by AMCU which
argued that all requirements of section 66(2) were met. But the Labour Court held that
the reasonableness requirement in section 66(2)(c) was not satisfied because the
secondary strikes would cause more harm to the businesses of the secondary employers
than to Sibanye ’s business. Accordingly, the Labour Court declared that each
secondary strike was unprotected and made no order as to costs.
[118] Since the primary strike was resolved, the matter has become moot. The
question that arises is whether that mootness is a bar to the entertainment of this appeal.
Our jurisprudence clearly shows that mootness is not an absolute bar to deciding an
appeal. Our courts have a discretion to exercise judicially and entertain an appeal that
is moot under certain circumstances.121 A court may refuse to hear a moot appeal if its
decision would be academic and not serve any other purpose. But if the decision of the
appeal court would be useful to the parties in the future or even to other parties, the
court may decide to entertain the appeal. This may be the case where a matter involves
the interpretation of a statute that continues to operate. Here, the interpretation of
section 66(2) of the LRA would provide useful guidance in the future if unions wish to
embark on secondary strikes. E mployers and unions would know the exact
requirements of the provision.
121 Pillay above n 34 and Independent Electoral Commission above n 34.
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[119] This Court in the past has entertained a moot appeal involving the construction
of the provisions of the LRA for similar reasons. In POPCRU this Court said:
“The meaning given to this section will have a practical effect on all future disputes
involving agreements that declare thresholds of representativeness. This illustrates that
a decision of this Court on the merits will be of great benefit to workers, trade unions
and employers in the future. This is because section 18 of the LRA continues to apply
to their relationships and the Act was enacted to give effect to rights in section 23 of
the Constitution.”122
[120] For these reasons I agree that the standard for deciding a moot appeal is satisfied
here. The relevant provision continues to be in force and there is a likelihood of a trade
union embarking on a secondary strike in the future, in order to maximise pressure on
the primary employer to return to the bargaining table and break the deadlock that led
to the primary strike in the first place. This paves the way to construing section 66(2).
Proper approach to interpreting the LRA
[121] The starting point must be the LRA itself because it tells us how it should be
interpreted. Section 3 of the LRA obliges any person who applies the Act, including a
court, to interpret it in compliance with the Constitution and public international law
obligations of the Republic and to give effect to the LRA’s primary objects.123 In simple
terms this inj unction notably means that whenever the LRA is interpreted, it must be
given a purposive meaning which complies with both the Constitution and international
law. For example, where the provision under construction is reasonably capable of two
meanings, on e of which is compliant with the Constitution and international law
122 POPCRU above n 35 at para 72.
123 Section 3 of the LRA provides:
“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of the Republic.”
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obligations of the Republic, the interpreting court must prefer the meaning that is
consistent with the Constitution and international law over the one that is not.
[122] Moreover, section 1 of the LRA sets out its primary objects to which effect
must be given through interpretation. 124 Of importance for present purposes among
those primary objects is giving effect to the labour rights entrenched in section 23 of
the Constitution which is a succe ssor of section 27 of the interim Constitution
mentioned in section 1. The other primary object is ensuring compliance with the
Republic’s obligations as a member of the ILO . Here the purposive meaning given in
section 66(2) must advance these two purposes. I will return to this point in detail later.
[123] To a degree, the injunction in section 3 of the LRA echoes the obligation
imposed by section 39(2) of the Constitution. 125 This provision obliges every court
when interpreting legislation to “promote the sp irit, purport and the objects of the Bill
of Rights”. Evidently here, the right which must be advanced is the one regulated by
section 66(2) and that is the right to strike. At an interpretation level this means that if
124 Section 1 of the LRA 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—
(a) to give effect to and regulate the fundamental rights conferred by section 23 of the
Constitution of the Republic of South Africa, 1996;
(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.”
125 Section 39(2) of the Constitution provides:
“When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
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section 66(2) is reasonably capabl e of a construction that promotes the right to strike,
that interpretation must be preferred over the other meanings which do not. In Makate
this Court pronounced:
“The objects of the Bill of Rights are promoted by, where the provision is capable of
more than one meaning, adopting a meaning that does not limit a right in the Bill of
Rights. If the provision is not only capable of a construction that avoids limiting rights
in the Bill of Rights but also bears a meaning that promotes those rights, the cour t is
obliged to prefer the latter meaning.”126
[124] In addition, a reminder on what the process of interpretation entails is necessary
before we undertake that task. Interpretation of a statute constitutes a process of
determining what Parliament meant in a particular provision by attaching a meaning to
the words used in the provision in question. Unless defined, those words must bear
their ordinary meaning and the process relates to assigning meaning to each and every
word that appears in the provision. This means that words which do not appear in the
provision cannot be added to the provision under the guise of interpretation. For the
importation of words into a statutory provision falls outside the scope of interpretation.
In other words, reading into a st atute words which were not included by the lawmaker
is not part of the interpretation process. In light of what occurred here, it bears emphasis
that interpretation is limited to attributing meaning to words used in a provision, and
that does not incorpor ate the importation of words which we think should have been
included but were omitted.
[125] This is because interpretation is not part of law making. It does not entail
adding words to a provision or subtracting them. It is not the task of an interpreter to
alter a provision enacted by Parliament under the rubric of interpretation. The fact that
it is competent for a court under certain circumstances to read words into a statute to
cure a constitutional defect does not mean that the court may do so while in terpreting
the provision. Therefore, as a matter of interpretation, words which do not appear in
126 Makate v Vodacom Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 89.
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section 66(2)(c) cannot be incorporated into that provision so as to give it a meaning
which we think it ought to carry.
[126] Fidelity to the LRA demands that we should interpret section 66(2) in the exact
form in which it was enacted, without any changes. The principle of respecting the
language chosen by the lawmaker is entrenched in the jurisprudence of this Court. First,
the injunction in section 39(2) may be discharged only if the language used in the
legislation is reasonably capable of a meaning that promotes the objects of the Bill of
Rights. This is consistent with the principle that if “the language used by the law giver
is ignored in favour of a genera l resort to ‘values’ the result is not interpretation but
divination”.127
[127] In Bertie Van Zyl this Court affirmed the importance of maintaining fidelity to
the language of the lawmaker. There the Court declared:
“A contextual or purposive reading of a statu te must of course remain faithful to the
actual wording of the statute. When confronted with legislation which includes
wording not capable of sustaining an interpretation that would render it constitutionally
compliant, courts are required, as discussed above, to declare the legislation
unconstitutional and invalid.”128
[128] Having outlined in detail the backdrop against which section 66(2) must be
construed, it is now convenient to interpret the provision. But before doing so, I must
point out that the Labour Court here did not pay attention to the actual text of the
provision. After a comprehensive analysis of the facts, that Court proceeded straight to
a conclusion it reached on its understanding of the provision. The Court held:
“The reasonableness requi rement involves a proportionality assessment: the harm
caused by the secondary strike to the secondary employer may be in proportion to the
harm potentially caused to the primary employer as a consequence of the secondary
127 S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) (Zuma) at para 18.
128 Bertie Van Zyl above n 81 at para 22.
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strike. In my view, this calls fo r an assessment of three key issues: the effect of the
secondary strike on the secondary employer, the possible direct or indirect effect that
the secondary strike may have on the business of the primary employer and the
proportionality of the harm caused to the primary and secondary employers
respectively.”129
[129] Proceeding from this premise, the Labour Court considered seriatim
(separately) what it identified as the key issues. These were the effect of the secondary
strike on the secondary employer, the prop ortionality of harm caused and the effect of
the secondary strike on the business of the primary employer. Without stating the
source of the first two issues, the Labour Court continued to consider the impact of each
on the businesses of the secondary emp loyer. That Court also considered the impact
the secondary strikes had on the business of Sibanye, the primary employer. Notably,
that Court focused on whether there was a link between the businesses of the secondary
employers and that of the primary employer. On the facts the Labour Court concluded
that the secondary strikes would have had no impact on the business of the primary
employer. This was the ratio for the order issued.
Interpretation of section 66
[130] Section 66(2) must be read and understood in the context of the whole section
and as a result it is necessary to quote the entire provision. It provides:
“(1) In this section ‘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, employed within the
registered scope of that council, have a material interest in that demand.
(2) No person may take part in a secondary strike unless—
(a) the strike that is to be supported complies with the provisions of
sections 64 and 65;
129 Labour Court judgment above n 2 at para 178.
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(b) the employer of the employees taking part in the secondary strike or,
where appropriate, the employers’ organisation of which that
employer is a member, has received written notice of the proposed
secondary strike at least seven days prior to its commencement; and
(c) the nature and extent of the secondary strike is reasonable in relation
to the possible di rect or indirect effect that the secondary strike may
have on the business of the primary employer.
(3) Subject to section 68(2) and (3), a secondary employer may apply to the Labour
Court for an interdict to prohibit or limit a secondary strike that contr avenes
subsection (2).
(4) Any person who is a party to proceedings in terms of subsection (3), or the
Labour Court, may request the Commission to conduct an urgent investigation
to assist the Court to determine whether the requirements of subsection (2)(c)
have been met.
(5) On receipt of a request made in terms of subsection (4), the Commission must
appoint a suitably qualified person to conduct the investigation, and then
submit, as soon as possible, a report to the Labour Court.
(6) The Labour Court mus t take account of the Commission’s report in terms of
subsection (5) before making an order.”
[131] In view of the interpretation given to section 66(2)(c) by the courts below and
the first judgment, it is necessary to carefully read the entire section to deter mine
whether that interpretation is correct and whether it accords with the injunctions in
section 39(2) of the Constitution and section 3 of the LRA. Subsection (1) tells us what
a secondary strike is. It says a secondary strike is a strike in support of a strike by other
employees against their employer. Before workers can embark on a secondary strike
against their own employer, there must be a strike by other employees against those
employees’ employer. That is, their strike must be secondary to the first strike which
is defined as the primary strike. However, the secondary strike must not only
sequentially follow the primary strike, it must also support it. But importantly
subsection (1) does not define the level of support. Therefore for as long as there is
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support of the primary strike in the secondary strike, the definitional elements of a
secondary strike are satisfied.
[132] Subsection (2) prescribes the requirements which must be met by workers
before they can embark on a secondary strike. But I propose to consider briefly the
other subsections before examining in detail the text of subsection (2), because it must
be read in the context of the whole section. Subsection (3) confers upon the employer
of workers who contemplate a secondary strike, t he right to apply for an interdict
restraining the contemplated strike. This right is limited to and must be based on a
contravention of subsection (2). And procedurally the exercise of this right is subject
to section 68(2) and (3). Section 68(2) empow ers the Labour Court to refuse the
interdict if 48 hours’ notice of the application for the interdict is not given to the workers
and other parties cited as the respondents. However the Court may permit a shorter
notice period if good cause is shown and the respondents have been given written notice
that affords them a reasonable opportunity to be heard. This means that an application
for an interdict cannot be made ex parte.
[133] For its part section 68(3) fixes a longer notice period where the notice for th e
impending secondary strike was given in writing at least 10 days before the
commencement of the proposed strike. In that event, the secondary employer must give
notice of at least five days to the respondents. This mandatory requirement of a notice
of no less than five days overrides the discretion conferred on the Labour Court by
section 68(2) and the shorter notice periods in that subsection. This means that where
written notice of at least 10 days is given before the commencement of the secondary
strike, section 68(2) is displaced by section 68(3), and the latter subsection applies
exclusively.
[134] Section 66(4), (5) and (6) regulate an investigation into whether the
requirements of subsection (2)(c) have been met before the secondary strike begins.
Subsection (4) authorises the parties to the interdict proceedings to request the CCMA
to conduct an investigation into compliance with subsection (2)(c). Subsection (5)
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obliges the Court, upon receipt of such request, to appoint a commissioner to conduct
an investigation as a matter of urgency and submit a report to the Labour Court. Lastly,
subsection (6) obliges the Labour Court to have regard to that report before granting the
interdict. This is the scheme within which section 66(2)(c) must be read.
Meaning of section 66(2)
[135] Returning to the text of section 66(2), this provision is framed in the form of a
prohibition. Its opening words are “no person may take part in a secondary strike
unless . . .”. Then the provision lists three requirements which must be satisfied before
the secondary strike begins. The first requirement is that the primary strike to be
supported by the secondary strike must have complied with sections 64 and 65 of the
LRA. In general terms this means that the primary strike itse lf must be protected as it
complied with all necessary requirements prescribed by the LRA.
[136] The second requirement relates to notice. Section 66(2)(b) proclaims that the
workers contemplating to participate in a secondary strike must give the secondary
employer written notice of at least seven days before the strike in question starts. This
notice need not specify which workers will participate in the secondary strike because
section 66(2)(b) does not require that specificity. Instead, it merely requires that the
secondary employer receive a written notice of the proposed strike, of at least seven
days before it begins.
[137] With regard to what a notice of a strike must specify as envisaged in
section 64(1)(b), the Supreme Court of Appeal in Moloto (SCA) 130 had preferred a
construction that required the notice to specify the number of workers who intended to
participate in the strike so that the employer could make necessary arrangements in its
business. The Court held the view that the purpose of giving notice was to enable the
employer to make an informed decision on whether to yield to the workers’ demands
130 Equity Aviation Services (Pty) Ltd v SATAWU [2011] ZASCA 232; 2012 (2) SA 177 (SCA) (Moloto (SCA)).
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or resist the strike by making necessary arrangements to protect the operation of its
business against the strike.
[138] A majority in this Court rejected that interpretation on the basis that
section 64(1)(b) of the LRA does not expressly say notice must be given by every
worker or their unions. On that construction, if one union has given notice of a strike,
the other unions and workers may simply join the strike without notifying the employer.
The majority reasoned:
“The right to strike is protected as a fundamental right in the Constitution without any
express limitation. 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 restrictive of the right if the text is reasonably capable of bearing that meaning.
The procedural prec onditions and substantive limitations 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.”131
[139] Since this is a decision of this Court, we are obliged to follow its approach in
interpreting provisions that limit the exercise of the right to strike by prescribing
requirements. Section 64, just like section 66, prescribes requirements for participating
in a protected strike. In view of the injunction in section 39(2) of the Constitution, we
are bound to adhere to the approach laid down by the majority in Moloto. Th is is
because if a provision like section 66(2) of the LRA trenches upon the right to strike, it
must be given a meaning that imposes the least limitation of that right.
[140] The third requirement of section 66(2) is to be found in (c) which reads:
131 SATAWU v Moloto and Another N.N.O. [2012] ZACC 19; 2012 (6) SA 249 (CC); 2012 (11) BCLR 1177 (CC)
(Moloto) at para 44.
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“No person may take part in a secondary strike unless—
. . .
(c) the nature and extent of the secondary 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.”
[141] Textually, the provision refers to the secondary strike and its relation to the
business of the primary employer. This ties up with the purpose of such strike which is
support to workers who are involved in the primary strike. Section 66(2)(c) does not
expressly or impliedly refer to the business of the secondary employer, let alone the
relationship between that strike and the business of the secondary employer. It is
completely silent on the impact the secondary strike may have on the business of the
secondary employer. It bears emphasis that not a single word in section 66(2)(c) may
be construed as meaning the business of the secondary employer. Nor is there a word
in it that reasonably means that the secondary strike should have an impact on the
business of the secondary employer. For this meaning to arise one has to read into the
provision words like “the secondary strike must have an impact on the business of the
secondary employer”. This cannot be done on the pretext of interpreting the provision.
It is impermissible and at odds with the jurisprudence of this Court in decisions like
Zuma and Bertie Van Zyl which laid down the principle that the language chosen by the
lawmaker must be respected and that the interpretation must remain faithful to t hat
language.
[142] It is true that considerations of fairness and equity may forcefully pull one in
the direction of seeking to protect the innocent secondary employer which has nothing
to do with the dispute between the primary employer and its workers who are on strike.
But for a number of reasons a court should not surrender to this temptation. The
language of section 66(2)(c) is clear and unambiguous on what it requires. It requires
the nature and scope of the secondary strike to be reasonable. It expressly says so. And
it proceeds to inform us that the reasonableness of the secondary strike must be “in
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relation to the possible direct or indirect effect that the secondary strike may have on
the business of the primary employer”.
[143] The words “the secondary strike is reasonable in relation to the possible direct
or indirect effect” plainly link the reasonableness of the secondary strike to the impact
that strike may have on the business of the primary employer. There is no room for
reading those words as s aying that the secondary strike must have an effect on the
business of the secondary employer, as the Labour Court has found here. 132 And that
Court failed to point out any words in the provision which carry that meaning. There is
simply none.
[144] This Court has, in accordance with the principles that the lawmaker’s language
must be respected and fidelity to it is to be maintained, rejected the resort to the values
of fairness and equity when interpreting a statute. In Cool Ideas the majority stated:
“Cool Ideas contended that it would be inequitable for Ms Hubbard to be absolved from
complying with the arbitrator’s award and from paying the outstanding approximately
R550 000 due to Cool Ideas. I am of the view that equity considerations do not apply.
But even if they do, as my colleague Froneman J suggests, the law cannot countenance
a situation where, on a case -by-case basis, equity and fairness considerations are
invoked to circumvent and subvert the plain meaning of a statutory provision which is
rationally connected to the legitimate purpose it seeks to achieve, as is the case here.
To do so would be to undermine one of the essential fundamentals of the rule of law,
namely the principle of legality.”133
[145] Equally there are no words that bear “the proportionality of the harm caused to
the primary and secondary employers, respectively”, 134 as held by the Labour Court.
No words at all, and the Labour Court also referred to none. This is plainly an
importation of a requirement not prescribed by the lawmaker. I t is contrary to the
132 Labour Court judgment above n 2 at paras 178 and 180.
133 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (Cool
Ideas) at para 52.
134 Labour Court judgment above n 2 at para 178.
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principle that constitutional rights conferred without express limitation should not be
cut down by reading implicit limitations into them. Here section 66(2)(c) does not
expressly limit the right to strike by imposing a proportionality standard for determining
the harm caused by the secondary strike upon the businesses of the primary and
secondary employers. As Moloto informs us, the right to strike cannot “be cut down by
reading implicit limitations” into it.
[146] On the contrary, the express limitations in section 66(2)(a), (b) and (c) must be
interpreted restrictively so as to have the least intrusion into the right to strike. This
principle was also affirmed in SAPS where this Court held:
“In order to ascertain the meaning of essent ial service, 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 interpretive 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.”135
[147] Our jur isprudence underpinned by the various principles outlined above,
recognises the centrality of the right to strike to the process of collective bargaining, 136
hence the need for the link between the secondary strike and the business of the primary
employer. In Bader Bop this Court observed:
“This case concerns the right to strike. That right is of both historical and
contemporaneous significance. In the first place, it is of importance for the dignity of
workers who in our constitutional order may not be t reated as coerced employees.
135 South African Police Service v Police and Prisons Civil Rights Union [2011] ZACC 21; 2011 (6) SA 1 (CC);
2011 (9) BCLR 992 (CC) (SAPS) at para 30.
136 Bader Bop above n 1 at para 13.
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Secondly, it is through industrial action that workers are able to assert bargaining power
in industrial relations. The right to strike is an important component of a successful
collective bargaining system.”137
[148] It is evident from this jurisprudence that in a number of decisions this Court has
recognised that the purpose of the right to strike is to promote collective bargaining,
which in turn is one of the primary objects of the LRA. Therefore an interpretation that
favours the right to strike gives effect to this primary object of the LRA. It also gives
effect to compliance with the constitutional injunction of promoting the objects of the
Bill of Rights.
[149] Properly construed, the purpose of section 66(2) is to regulate the e xercise of
the right to participate in a secondary strike. In explicit terms the provision tells us that
workers may participate in a secondary strike if three express requirements are met.
Section 66(2)(c) makes it known that the secondary strike must b e related to the
business of the primary employer. The reason for this is simply that the secondary strike
itself must have the potential of driving the primary employer back to the bargaining
table. The impact the strike might have on the business of th e secondary employer is
of no relevance to the bargaining process between the primary employer and its
workers. Therefore, this impact is not linked to the purpose of the secondary strike and
that is why section 66(2)(c) does not refer at all to the busin ess of the secondary
employer and any impact the secondary strike might have on it.
[150] Accordingly section 66(2)(c) serves one purpose only. This is the pressure the
secondary strike must bring to bear on the business of the primary employer, plain and
simple. The provision does not even remotely seek to protect the interests of the
secondary employer. That is not its purpose and consequently it cannot be given a
meaning that protects the business of the secondary employer. Moreover, it bears
repetition that such an interpretation is not borne out by the language used in the text
and is inconsistent with a number of principles relevant to the interpretation of
137 Id.
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section 66(2) which imposes limitations on the right to strike. As observed in Moloto,
the intrusion by section 66(2)(c) into the right to strike must only be as much as is
necessary to achieve its purpose o f establishing the link between the secondary strike
and the business of the primary employer.138
[151] The required effect or impact need not be direct. An indirect effect suffices.
Nor is it required to be actual. The possibility, and not probability, of suc h effect is
good enough for purposes of meeting the requirements of section 66(2)(c). This means
that for the workers of the secondary employer to participate in a secondary strike, they
need to show that the strike would possibly have an impact on the bu siness of the
primary employer. A mere possibility does not guarantee that the effect would
materialise. It may occur or it may not, and yet Parliament considered that to be
sufficient to justify a secondary strike, provided that the other requirements i n (a) and
(b) are also met.
[152] The sufficiency of the mere possibility of an effect cannot be reconciled with
the proportionality requirement added by the Labour Court. This is because this
standard requires that the harm caused to the business of the secon dary employer must
be proportionate to the harm the same strike would have on the business of the primary
employer. It is inconceivable that the secondary strike may give rise to mere possible
harm on the business of the secondary employer. If the employ ees of the secondary
employer are on strike, it would mean that their work is not performed and that would
be the actual harm caused to the secondary employer. If the entire workforce of the
secondary employer embarks on a strike, its business would be br ought to a complete
halt unless temporary workers are engaged to replace the striking workers. And yet
section 66(2)(c) requires proof of possible harm on the business of the primary employer
which harm may be direct or indirect.
138 Moloto above n 131 at para 55.
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[153] But more importantly the language used in the provision does not require that
the harm on the business of the primary employer must be proportionate to the harm
suffered by the business of the secondary employer. If Parliament wanted to include
proportionality as one of the provision’s requirements, it could easily have done so. It
did not. In addition, Parliament could not have used in the provision the type of
language that is irreconcilable with the proportionality analysis if it had contemplated
that proportionality should apply.
[154] The proportionality standard is not only unsupported by the language of
section 66(2)(c) but is also based on a mistaken assumption that a secondary strike may
have an effect that is proportionate to both the secondary and primary businesses. This
is not likely. The withdrawal of labour by employees of the secondary employer can
hardly have a corresponding effect in size and impact on the business of the primary
employer, because the workers who are involved in a secondary strike do not work for
the primary employer. The greater impact upon the business of the primary employer
is caused by the primary strike. This does not mean that the secondary strike can have
no effect on the business of the primary employer. It may have some impact but to a
lesser degree.
[155] To hold otherwise would mean that secondary strikes would be permitted only
on the rare occasions, if ever there were such occasions, where the secondary strike is
shown to have an equal effect upon the businesses of the secondary and prima ry
employers. That is why to date there is no single case where the standard was applied.
The facts of many cases decided by the Labour Courts have not met this almost
impossible test.
[156] It is self-evident from the text of section 66(2)(c) that the effect the secondary
strike may have on both businesses would most of the time differ. Take for example,
the fact that the effect of the secondary strike on the business of the secondary employer
would always be direct, whereas the provision permits an indirect effect on the business
JAFTA J
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of the primary employer. There can be no proportionate effect in that case, yet the
requirements of section 66(2)(c) would be met.
[157] I conclude that section 66(2)(c) requires the secondary strike to be reasonable
only in relation to the business of the primary employer. It would be reasonable if it
has a possible direct or indirect effect on the business of the primary employer. There
is no need for such effect to compare in size with the effect that the strike has on the
business of the secondary employer. The purpose of the section is not to protect the
secondary employer but to have pressure brought to bear on the primary employer to
either surrender to its employees’ demands or return to the bargaining table. The
secondary employer may not surrender to those demands or bargain on them.
[158] This interpretation of section 66(2)(c) is consonant with section 39(2) of the
Constitution and the demands of section 3 of the LRA. It is also in line with th e
principles set out in Moloto where a similar provision was interpreted by this Court. In
addition, the interpretation accords with the ILO’s position to the effect that secondary
strikes should be subject only to the requirement that the primary strike be lawful.139
[159] Here the Labour Court and the decisions on which it relied failed to follow
decisions of this Court in cases like Moloto which interpreted provisions of the LRA
that imposed limitations on the right to strike. That Court also departed from its own
previous decisions in cases like Billiton Aluminium.140 Had the Labour Court referred
to relevant decisions of this Court, it could have arrived at a different conclusion.
[160] However, since the merits have become moot I agree that the appeal may
succeed only to the extent of the costs order made by the Labour Appeal Court.
139 First judgment at [44].
140 Billiton I above n 29.
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65
THERON J:
[161] I have had the benefit of reading the first and second judgments.
[162] My Sister Pillay AJ interprets the Labour Court to have held that
section 66(2)(c) prohibits multiple secondary strikes in support of the same primary
strike from simultaneously taking place at distinct places of employment (so-called
multi-employer secondary strikes).
[163] With respect, this misconstrues the findings of the Labour Court. Neither that
Court, the Labour Appeal Court, nor any of the parties, have suggested that
section 66(2)(c) means t hat multi-employer secondary strikes are prohibited. Quite
simply, this was never in issue in this matter. Instead, the relevant question is: when a
court assesses whether a secondary strike is reasonable in relation to its effects on the
business of the primary employer, can it consider only one secondary strike, or many?
In other words, can a court aggregate secondary employers for purposes of the
section 66(2)(c) inquiry? The Labour Court answered this question in the following
term
“In my view, thi s factual inquiry [mandated by section 66(2)(c)] does not permit the
grouping together of a collection of secondary employers in a specific industry and
assessing what the combined effect . . . would have on the primary employer. Such an
approach will ignore the critical question namely: the effect the secondary strike may
have on the business of the primary employer in relation to the secondary employer,
which calls for a consideration of the facts and an assessment of factors relevant to each
secondary employer. To do differently would deprive each single secondary employer
of the protection afforded to them by section 66(2)(c) of the LRA.” (Emphasis
added.)141
141 Labour Court judgment above n 2 at para 22.
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66
[164] The Labour Court held further that:
“It appears that AMCU’s position is that the proportionality analysis is to be undertaken
collectively vis-à-vis all the employers who are subject to a secondary strike at once,
as opposed to an individual analysis to be undertaken vis-à-vis each employer which is
subject to the secondary strike.
I have already held that the enquiry into the reasonableness of the secondary strike
does not permit the grouping together of a collection of secondary employers in a
specific industry and assessing what the combined effect of a broader industry
secondary strike would have on the primary employer. The aforesaid assessment is to
be undertaken in respect of the proportional harm done to each of the applicants and
must be assessed individually.”142 (Emphasis added.)
[165] And, on this score, the Labour Appeal Court held:
“Whilst the facts of the SALGA case were different to that which applied in the present
dispute, this Court, in confirming the judgment of Van Niekerk J, clearly established a
test that the mandated enquiry has to focus on the individual secondary e mployer.
There is, therefore, no reason to entertain an appeal with regard to a point of law which
has already been settled by this Court.”143 (Emphasis added.)
[166] Both the Labour Court and Labour Appeal Court were clear: for purposes of
the section 66(2)(c) inquiry, a court is not permitted to aggregate secondary strikes. 144
Neither court held that multi -employer secondary strikes are prohibited by
section 66(2)(c).
[167] To the extent that my Sister Pillay AJ diverges from these findings of the
Labour Court and Labour Appeal Court, I disagree. First, my Sister’s finding flies in
the face of Labour Appeal Court authority. In SALGA, the Labour Appeal Court held
142 Id at paras 147-8.
143 Labour Appeal Court judgment above n 2 at para 21.
144 Id and Labour Court judgment above n 2 at para 22.
THERON J
67
that section 66(2)(c) requires that a court “weigh the effect of the secondary strike on
the secondary employer and the effect of the nature and extent of the secondary strike
on the business of the primary employer.” 145 Respectfully, the first judgment’s
departure from this authority is premised on a misunderstanding of what the Labour
Court held in respect of aggregation. The Labour Court did not hold that multi -
employer secondary strikes are prohibited. It held that, for purposes of the section
66(2)(c) inquiry, a court cannot aggregate secondary strikes.
[168] Second, this conclusion is fortified by the text, context and purpose of
section 66(2)(c). That section provides that “[n] o person may take part in a secondary
strike unless . . . the nature and extent of the secondary strike is reasonable in relation
to the possible direct or indirect effec t that the secondary strike may have on the
business of the primary employer”. (Emphasis added.) While it is true that the general
rule is that the singular includes the plural, this rule is subject to the caveat that it only
applies unless the context indicates otherwise.146 And here, the context makes clear that
the use of the singular “secondary strike” was deliberate and precludes an aggregation
of secondary strikes for purposes of the section 66(2)(c) inquiry. This is because
section 66(3) provides that “a secondary employer may apply to the Labour Court for
an interdict to prohibit or limit a secondary strike that contravenes subsection (2) ”.
Plainly, such an employer has no standing to interdict a secondary strike at a workplace
to which that employer has no connection. Thus, for purposes of section 66(3),
“secondary strike ” must refer to an individual secondary strike, and not to an
aggregation of secondary strikes. As a result, to hold that “secondary strike ” as it
appears in section 66(2)(c) can refer to an aggregation of secondary strikes requires that
a different meaning is ascribed to “secondary strike ” in sections 66(2)(c) and
section 66(3). Trite principles of statutory interpretation tell us that such an
interpretation is to be avoided.147
145 SALGA II above n 11 at para 10. (Emphasis added.)
146 Section 6(b) of the Interpretation Act.
147 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) at para 70. See also More v Minister of Co-operation and Development
THERON J
68
[169] In addition, as the Labour Court correctly held, the protection which
section 66(2)(c) affords secondary employers is denuded if that section is interpreted to
permit the aggregation of secondary employers for purposes of the proportionality
inquiry. By way of example, suppose that there were two secondary strikes in support
of the same primary strike and that one of these secondary strikes had a profound effect
on the business of the primary employer, but that the other had a very slight effect and
had serious adverse effects on the secondary employer. On the interpretation adopted
by the first judgment, the latter strike might well be permissible under section 66(2)(c)
even though, by hypothesis, it has only a very slight effect on the primary employer and
very serious adverse effects on the secondary employer. In other words, a strike which,
on its own, would be unlawful in terms of section 66(2)(c), is transmogrified into a
lawful strike because of secondary strikes at entirely unconnected places of
employment. That cannot be. As a result, and accepting as I do that section 66(2) is
intended to afford employers a measure of protection, I cannot agree that
section 66(2)(c) allows for an aggregation of secondary strikes for purposes of the
proportionality assessment.
[170] Save for this qualification, I concur in the first judgment.
1986 (1) SA 102 (A) at 115B -D and Minister of the Interior v Machadodorp Investments (Pty) Ltd 1957 (2) SA
395 (A) at 404D-E.
For the Applicants:
For the Second Respondent:
For the Third , Fourth, Sixth, Seventh,
Eighth and Tenth Respondents:
P Kennedy SC and F Boda SC instructed
by LDA Attorneys Incorporated
A Snider SC and Y Ntloko instructed by
Cliffe Dekker Hofmeyr Incorporated
A Myburgh SC and R Itzkin instructed
by Webber Wentzel and ENS Africa
Incorporated