Unravelling Urgent Interdicts and Labour Strikes in South Africa: A Balancing Act Of Rights

07 December 2023

Historically, labour strikes within the mining and construction sectors have frequently emerged from contentious issues revolving primarily around wages, working conditions, and job security. These disputes have far-reaching implications, disrupting day-to-day operations and causing substantial financial losses for both employers and employees. Recent news headlines of mineworkers holding their colleagues “hostage” underground at the GoldOne Mine in protest against mine management have caused renewed worry amongst management, mine contractors and their respective legal teams. The protesting mineworkers used this new method of a labour strike as a means to force management to the table to deal with the workers’ grievances. The action resulted in mine stoppages, costing millions of Rands. While South African law fiercely protects the rights of works to down tools and embark upon a strike, employers are not left unarmed, specifically in situations where a strike may turn deadly or cause significant financial harm. Often the first priorities of mine management are ensuring employee safety and a resumption of work to stop a haemorrhaging of money. This article explores a quick method to stop a strike. 

There is no question that the underground strikes at GoldOne were incredibly dangerous, especially to those mineworkers who were not participants in the labour action. Where mineworkers are steadfast in refusing to release their colleagues or to return to the surface, mine management’s or a contractor’s first legal step in resolving the problem should be to approach a court for urgent relief. That relief generally takes the form of an interim interdict which must be applied for urgently.

As an urgent application is effectively a way of ‘jumping the queue’, employers must provide sound reasons for a court to grant the order sought. The risks faced by workers underground are enormous even without them being held there against their will, and it is imperative that they are not exposed to those risks for any longer than absolutely necessary. This argument, alongside both the fact that it may take several weeks or even months to obtain an interdict in the normal course and massive financial harm could result in the interim, may prove persuasive to a court.

Once urgency is established, employers must address four crucial considerations to obtain an interim interdict successfully: establishing a prima facie right to be protected; demonstrating potential irreparable harm; proving the occurrence or reasonable apprehension of harm; and showing the absence of alternative remedies.

In the case of an underground mineworkers’ strike, especially where it involves unwilling participants, the existence of a prima facie right is certain: the right of the non-striking workers to return to the surface and be free from the risk of injury. A mine owner also has a right to continue mine operations and every day of a mine stoppage infringes that right. If a final interdict is sought, the first prerequisite will only be satisfied if a clear right exists as opposed to a prima facie right.

Irreparable harm is a clear risk, too, as a mineworker may die as a result of the strike – the risk is even greater if that mineworker remains underground for extended periods. It is also impossible to wind back the clock as a mine owner or contractor cannot recover several days or weeks’ worth of lost production. This ties in the reasonable apprehension of harm since the longer a mineworker stays underground, the greater the risk of injury or illness. Financially, harm may take the form of a mine closure due to unprofitability and resultant job losses if the strike is prolonged.

If discussions surrounding the workers’ grievances have not resolved them, even using skilled negotiators or doing so underground, it is unlikely that a remedy exists to put an end to the strike other than an urgent interdict.

These elements must be proven for an application for an interim interdict to succeed. In the case of a labour strike, the right to strike presents an additional complication that employers, mine management and contractors must consider.

The right to strike is a fundamental pillar of labour relations in South Africa. It is enshrined in the Constitution of the Republic of South Africa and further dealt with in the Labour Relations Act. Crucially, the exercise of this right is not absolute and must be balanced against the rights of employers, non-striking employees, and the general public. The legality of a strike is a critical factor in determining the extent of protection afforded to striking workers.

The courts in South Africa have consistently affirmed the importance of the right to strike. In the landmark case of National Union of Metalworkers of South Africa v Fidelity Security Services (Pty) Ltd, the Constitutional Court held that “the right to strike is not only a right of the workers, but it is also a right that is fundamental to the democratic process.” Despite the strong protection afforded to the right to strike, the courts have made it clear that striking workers are not permitted to engage in acts of violence or intimidation. If they do, they may be held liable for their actions and may also face disciplinary action from their employer.

In Tsogo Sun v Future of South African Workers’ Union and Others, the court stated that it “will always intervene to protect both the right to strike, and the right to peaceful picketing.” However, the court also cautioned that “the exercise of the right to strike is sullied and ultimately eclipsed when those who purport to exercise it engage in acts of gratuitous violence in order to achieve their ends.” Similarly, in RAM Transports v SATAWU and Others, the court emphasised that “this court is always open to those who seek the protection of the right to strike.” It also warned that “those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose.”

These cases highlight the challenges an employer, mine management and contractors will face when trying to interdict a strike. Aside from the four traditional requirements to be proven, the court will carefully weigh the competing interests involved in each case, particularly when it is asked to limit the right to strike. This results in a legal landscape surrounding strikes that is complex and ever-evolving. It is therefore essential for employers, management and contractors to be well-informed about their rights and obligations regarding strike action. They should seek legal advice to ensure that they are prepared to handle strike actions in a legally compliant manner.

By Steven Darge | Director & Triston Koekemoer | Candidate Attorney

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