Legal updates and opinions
News / News
Explanatory Note
“No right, including the right to strike, is absolute.”
(AMCU and Others vs Anglo Gold Ashanti and Others)
The right to strike is understood and accepted to be a principal weapon employees use in the struggle to improve their livelihood and to overcome centuries of discrimination. This right is entrenched in the Constitution of the Republic of South Africa (the Constitution) and therefore cannot be interfered with lightly. However, the right to strike is not absolute and like all other rights, is subject to a limitation.
It is trite that the right to strike is limited by both the Constitution and the LRA. According to section 213 of the LRA, a strike is defined as “partial or complete concerted refusal to work, or the retardation or obstruction of work”. The Constitutional Court has expressed a view that the definition implies that all strikes must be peaceful.
Section 17 of the Constitution reinforces the limitation as it guarantees that “everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket, and to present petitions”.
Having considered the limitations imposed by both the Constitution and the LRA, the Constitutional Court, albeit in passing, determined that “once strikes cease to be peaceful, they lose the protection of the law”. Because the Constitutional Court is an apex court its obiter dictum carries weight and has a binding effect on the courts below it. Although the obiter dictum was in the context of the secondary strike, we see no reason why a primary strike cannot be interdicted on the same basis.
In light of the obiter dictum, in this case, we are of the view that employers are not limited to interdicting the violence during a strike but can also interdict the strike itself on the basis that it has turned violent.
It remains to be seen whether the historical and/or potential violence will be a factor that a court will consider in interdicting a primary strike.
Latest News
The meaning of a hearing DE NOVO in arbitration proceedings
Section 138 of the Labour Relations Act 66 of 1995 accords the commissioner’s discretion to determine the matter and form [...]
The provision of transport for employees working overtime beyond 18h00
Summary The performance of night work is regulated to, among others, avoid or minimise an employee’s health risks, including the [...]
Consequences of late/non-filing of employment equity reports
In terms of the EEA, designated employers are obliged to submit an Employment Equity Report (“EER”) to the Director-General of [...]
May an employer take on the right to alter a chairperson’s decision in a disciplinary hearing?
May an employer overturn the decision of a chairperson of a disciplinary hearing if it believes the chairperson’s sanction was [...]
Admission of video recordings as evidence in arbitration proceedings
In terms of section 138(1) of the Labour Relations Act 66 of 1995 (as amended) (“the LRA”) a “commissioner may conduct the [...]
Life after Sidumo: clarifying the review test
Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC) is a landmark case in South African labour law, [...]
