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
Making South Africa home?
by Doelie Lessing, Director and Head of Tax and Private Wealth, Luke Magerman, Senior Associate and Mike Searle, Candidate Attorney [...]
Trust regulation to be overhauled
by Ernest Mazansky, Director, Werksmans Tax (Proprietary) Limited Introduction On 7 August 2026 a draft Bill, the Regulation of Trusts Bill, 2026 [...]
South Africa’s crypto crackdown: Draft Manual brings cross-border crypto asset transactions under exchange control
by Natalie Scott, Director and Head of Sustainability The South African Reserve Bank ("SARB") and National Treasury published the draft [...]
Transnet N1 Culemborg Eviction
By Brendan Olivier, Director and Kristen Elliott, Senior Associate The Western Cape High Court has ordered the eviction of over [...]
A brief overview of the Small Claims Court (2026 update)
by Dakalo Singo, Director and Head of Pro Bono What is the Small Claims Court? The Small Claims Court ("SCC") [...]
Success of the South African Business Rescue Process – Positive news for the restructuring of distressed companies
by Dr. Eric Levenstein, Director and Head of Insolvency & Business Rescue Dr Eric Levenstein unpacks the legal significance of recent [...]
