A recent judgment by the Labour Court of South Africa highlights the debate around the efficacy of court interdicts in prohibiting unlawful conduct in the context of strike action.
In November last year, the trade union, South African Municipal Workers Union (SAMWU) and its members, who are employees of Pikitup, commenced unprotected strike action. Pikitup is owned by the City of Johannesburg (CoJ) and conducts the business of waste collection and disposal in the greater Johannesburg area and its surrounds.
The strike was unprotected and was accompanied by violence and intimidation by striking employees. On 24 November 2015, Pikitup successfully obtained an interim Labour Court order, inter alia, interdicting the strike, precluding employees for participating in such strike action and preventing employees from committing various acts of unlawful conduct aimed at interfering with Pikitup’s waste collection business.
Despite the court order, SAMWU and its members continued with the strike. It eventually ended on 4 December 2015, approximately two weeks after the order had been granted.
During the strike, SAMWU and its members had, contrary to the terms of the court order, continued to commit various act of unlawful conduct aimed at interfering with Pikitup’s waste collection business. The conduct by striking employees included preventing non-striking employees from reporting for work, blocking access to and egress from various depots and dumps sites, trashing and burning waste disposal bins and emptying out waste disposal bins on the streets in the central business district of Johannesburg and in Braamfontein. During the strike, the union and its officials had further issued various statements in the media inciting the continuation of the strike.
On 11 February 2016, the Labour Court made its order final and issued a punitive costs order against SAMWU in relation to the urgent application itself. The Labour Court went a step further and held that, in its view, on the face of affidavits that Pikitup had filed at Court, SAMWU and its members were in contempt of the order that the Labour Court had issued on 24 November 2016. The Court therefore issued a further order requiring SAMWU and its general secretary, Mr Simon Mathe, to explain why they should not be found to be in contempt. In the Court’s view, its authority had clearly been publicly undermined by the union and it members.
The first issue for the Court to consider was whether the union and its officials had in fact complied with their obligations in the interim order and secondly, if they had not, whether such non-compliance amounted to contempt of the court order and what the penalty should be.
On the first issue, the court considered to be of relevance the alleged public statements made by union officials and concluded that there was no doubt that the public statements by union officials conveyed the sense that the union endorsed the strike and supported its continuation. The actions of these officials were plainly in breach of the terms of the court order. The Court held further that there was no evidence of any proactive steps taken by SAMWU to ensure that its officials and members complied with the order and further that the only reasonable inference is that SAMWU and Mathe were completely indifferent as to whether their actions were in breach of the court order or not.
On the question of the penalty that should be imposed, the Court considered the fact that the contempt related to the interim order alone and the time for compliance with that order had passed. Further, since the period in respect of which the findings of contempt were made ended on 3 December 2015, the Court was inclined to impose much lower fines than would probably have been the case if the period of continued disruption after the confirmation of order was also under consideration.
In the end, the Court ordered that SAMWU be fined ZAR 80 000, suspended for 24 months on condition that SAMWU was not found guilty of contempt of any Labour Court order. Further, Mathe was fined ZAR 10 000 suspended for 24 months on condition that he was not found guilty of contempt of any Labour Court order. In addition, Mathe and SAMWU were ordered to pay costs of the contempt proceedings on a punitive scale.
Although the fine issued by the Labour Court appeared to be nominal and had been suspended, the judgment sent a clear message that deliberate breach of the orders issued by the Labour Court will not go unpunished. This is particularly true in the South African context where unprotected strikes and strike violence are very common. Employers who face this type of action look to the Labour Court to issue interdicts to stop this type of behaviour. Most often, employees and the trade unions simply disregard the provisions of strike interdicts. The small fine issued by the Labour Court in this matter and its suspension, however, continue the debate as to whether or not court interdicts are worth the paper they are written on and whether the threat of contempt proceedings, in the event that the terms of the order issued by the Labour Court are breached, is a sufficient deterrent.
Bowman Gilfillan Africa Group represented Pikitup in this matter.
Henry Ngcobo is a partner and Keshni Pillay is a senior associate in Bowman Gilfillan Africa Group’s Employment & Benefits Practice.