CIRCULAR 12 OF 2022: COMMERCIAL STEVEDORING AGRICULTURAL AND ALLIED WORKERS UNION AND OTHERS V OAK VALLEY ESTATES (PTY) LIMITED AND ANOTHER CCT 301/2

Dear TMA-SA Member

On Tuesday, 1 March 2022 at 10h00, the Constitutional Court handed down a unanimous judgment in an application for leave to appeal against a judgment and order of the Labour Appeal Court, hearing an appeal from the Labour Court. The matter concerned the competence of a court to grant interdictory relief against a group of respondents in circumstances where an applicant fails to link each of the various respondents to the alleged actual or threatened unlawful conduct.?

On 6 May 2019, a protected strike called by the first applicant, the Commercial Stevedoring Agricultural and Allied Workers’ Union (CSAAWU), commenced at the premises of the first respondent, Oak Valley Estates (Pty) Limited (Oak Valley). The workers who participated in the strike were either employed by Oak Valley in terms of permanent contracts of employment or had seasonal employment on Oak Valley’s farm through a labour broker, Boland Labour (Pty) Limited (Boland Labour), the second respondent. It was common cause that the strike triggered incidents of intimidation, damage to property, and unlawful interference with Oak Valley’s business operations and that there were numerous breaches of the Picketing Rules which had been determined by the Commission for Conciliation, Mediation and Arbitration.?

Oak Valley accordingly instituted urgent proceedings in the Labour Court to interdict CSAAWU, 364 of its employees, and various “unidentifiable respondents” who it said associated themselves with the acts of unlawfulness. The interdictory relief was intended, amongst others, to restrain further unlawful conduct and breaches of the Picketing Rules, and, on 20 May 2019, was granted by the Labour Court.?

When Oak Valley again approached the Labour Court, this time for final relief, it abandoned its case against the various workers who were no longer on strike. It therefore sought relief only against the “unidentifiable respondents”, CSAAWU, and the second to 174th applicants (being those Oak Valley employees who remained on strike). CSAAWU and the second to 174th applicants (referred to collectively as “the applicants” in what follows) raised three defences: (a) the Labour Court lacked jurisdiction regarding the alleged non-compliance with the Picketing Rules because Oak Valley did not refer a dispute regarding this alleged non-compliance in terms of either section 69(8) or 69(11) of the Labour Relations Act; (b) the interdict sought by Oak Valley was unduly broad and interfered with lawful conduct; and (c) Oak Valley had failed to link any of the unlawful conduct complained of to the respondents that it had cited. The Labour Court accepted that it could not interdict the “unidentifiable respondents” but otherwise rejected the applicants’ defences.?

In the Labour Appeal Court, the applicants succeeded in the first two of their defences but were unsuccessful in respect of the third. The Labour Appeal Court held that “[t]o insist in the fraught context of an industrial relations dispute that an employer can only gain relief against those employees it can specifically name from a group which was involved in unlawful activity is surely a bridge too far”. It accordingly confirmed the interdictory relief against the applicants in amended form.?

In their unopposed appeal to the Constitutional Court, the applicants contended that a respondent cannot be competently placed under interdict if she is not linked to the actual or threatened unlawful conduct and that, in this case, no such link had been established. They contended further that the Labour Appeal Court’s contrary decision was inimical to the settled law of interdicts, the rule of law, and the constitutional rights to strike and picket. For these reasons, the applicants contended that the Court’s jurisdiction was engaged, that leave should be granted, and that the appeal should be upheld.?

In a unanimous judgment penned by Theron J, the Court held that the High Court and Labour Court had, with few exceptions, consistently adhered to the requirement that interdictory relief can only be competently granted if a respondent can be rationally linked to the unlawful conduct. The Court explained that this requirement flows from the fact an applicant for a final interdict must show a reasonable apprehension of injury. Absent any link between the unlawful conduct and the respondent, the applicant cannot reasonably apprehend that the respondent will cause her injury. The Court held further that mere participation in a strike or protest in which there is unlawful conduct is insufficient to adequately link the respondent to that conduct. The required link could, however, be shown, if it was established that the strikers or protesters had committed the unlawful conduct as a cohesive group. The Court explained that where unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that they acted in concert with those who engaged in acts of unlawfulness. By contrast, where a protest or strike is substantially peaceful, but there are isolated and sporadic instances of unlawful conduct, only those protesters who associate with the acts of unlawfulness can permissibly be placed under interdict. The Court held that this requirement, which is the extant common law position, appropriately balances the competing rights and interests of employers and employees.?

On the facts, the Court held that, save in respect of the 23rd applicant, the second to 174th applicants had not been adequately linked to the alleged acts of unlawfulness. Oak Valley inexplicably failed to identify which of the applicants was responsible for or associated with the unlawful conduct, in circumstances where it indicated that it knew the identities of certain of the perpetrators. The 23rd applicant, by contrast, had been specifically named in Oak Valley’s founding affidavit as having threatened violence against Oak Valley, and this allegation was not squarely challenged by the applicants. The Court held that this sufficed to draw the required link between the 23rd applicant and the unlawful conduct. Likewise, CSAAWU’s National Organising Secretary had been arrested for alleged intimidation during the course of the strike. Since he was a CSAAWU leader and its mouthpiece during the strikes, and his arrest occurred in the midst of common cause acts of unlawfulness, the Court held that Oak Valley’s apprehension that CSAAWU would cause it harm could not be faulted as unreasonable.?

Accordingly, save in respect of CSAAWU and the 23rd applicant, the appeal was upheld, and the order of the Labour Appeal Court set aside. Since the application was a labour matter and was in any event unopposed, the Court made no order as to costs.?

Regards

TMA-SA?