City of Tshwane Metropolitan Municipality and Another v South African Municipal Workers Union and Others (J 1074 / 23) [2023] ZALCJHB 257; (2023) 44 ILJ 2703 (LC); [2023] 12 BLLR 1247 (LC) (18 September 2023)

FLYNOTES: LABOUR – Unprotected strike – Unlawful conduct – Non-compliance with rule nisi – Committed acts involving violence, intimidation and damage to property – Interdict against unlawful conduct – Sufficient evidence that such conduct continuing to be perpetrated – Applicant entitled to protection – Continuing and imminent harm – No alternative remedy – Rule nisi confirmed as final order – Based on conduct of union and employees, costs order justified – Labour Relations Act 66 of 1995, s 65(1)(c).

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: J 1074 / 23

In the matter between:

CITY OF TSHWANE METROPOLITAN MUNICIPALITY First

Applicant

MUNICIPAL MANAGER: CITY OF TSHWANE

METROPOLITAN MUNICIPALITY Second

Applicant

and

SOUTH AFRICAN MUNICIPAL WORKERS UNION First

Respondent

SOUTH AFRICAN MUNICIPAL WORKERS UNION Second

to Further

MEMBERS (LISTED IN ANNEXURE “A”) HERETO

Respondents

Heard: 8 September 2023

Delivered: 18 September 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and released to SAFLII. The date and time for hand-down is deemed to be 18 September 2023.

Summary: Strike – conduct of employees considered – conduct constituting strike action – strike declared to be unprotected – proper basis for making a final order – rule nisi in this regard confirmed

Interdict against unlawful conduct – sufficient evidence that such conduct continuing to be perpetrated – applicant entitled to protection against unlawful conduct – rule nisi in this regard confirmed

Interdict – final relief sought – principles stated – continuing and immanent harm – no alternative remedy – final interdict granted

Costs – conduct of union and employees considered – costs order justified

JUDGMENT

SNYMAN, AJ

Introduction

[1] On 28 July 2023, the applicants brought an urgent application against the respondents, seeking declaratory relief to the effect that the respondents had embarked upon unprotected strike action. The applicants also sought an interdict against the respondents, on the basis that in the course of the unprotected strike action, the respondents committed unlawful conduct involving violence, intimidation and damage to property. The application came before Mabaso AJ and the learned Judge granted a rule nisi, with the return date being 13 September 2023, in the following terms:

‘2 A rule nisi is issued for the First respondent and Second and Further Respondents whose names appear on the list attached hereto on Annexure A to show cause, if any on 13 September 2023, why a final order should not be granted in the following terms:

2.1 Declaring the strike action embarked upon by the Respondents on 24 July 2023 unlawful and unprotected.

2.2 The Respondents are to immediately disperse and are interdicted and restrained from participating in the unlawful strike / unprotected strike action and performing any acts in continuance and furtherance thereof.

2.3 The Respondents are interdicted and restrained from performing any act of destruction of the City of Tshwane’s property and any private or public property or from performing any acts of intimidation to any of the Applicant’s employees and / or the Applicant’s patrons. …’

[2] At the time when Mabaso AJ granted the order, the respondents had not yet opposed the application. In terms of paragraph 4 of the order of Mabaso AJ, the respondents were afforded leave to anticipate the rule nisi before the return date, on 48 hours’ notice. On 6 September 2023, the respondents then indeed elected to anticipate the rule nisi to 8 September 2023, seeking relief that the application of the applicants be dismissed and the rule nisi discharged. The anticipation was supported by a comprehensive answering affidavit to the applicants’ founding affidavit in the application brought on 28 July 2023.

[3] The applicants filed a replying affidavit to the respondents’ answering affidavit on the morning of 8 September 2023, but despite this, both parties indicated their willingness to have the matter finally determined on the day. Both parties accepted that because all pleadings in this matter had been exchanged, the matter had to be decided on the basis of the applicants seeking final relief in the form of the conformation of the rule nisi, as granted on 28 July 2023. Because the applicants seek final relief, the applicants must satisfy three requirements, being: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of any other satisfactory remedy.[1]

[4] After considering argument on 8 September 2023, and in order for me to properly consider the replying affidavit that had only been filed the very same morning, I extended the rule nisi to 15 September 2023 and reserved judgment until that date. For ease of reference to the parties in this judgment, I will refer to the applicants as ‘the City’, the second and further respondents as ‘the employees’ and the first respondent as ‘SAMWU’.

Preliminary issues

[5] SAMWU raised two preliminary issues in the answering affidavit. The first issue is that SAMWU, as a legal entity, is incapable of performing the kind of unlawful acts as contemplated by the order of Mabaso AJ. In particular, it is contended that SAMWU as a legal entity cannot participate in a strike, damage company property, or intimidate third parties. The second issue is that there was no personal service of the order of Mabaso AJ on the employees. Based on these two issues, it is contended by SAMWU that the rule nisi falls to be discharged.

[6] In my view, there is no substance in any of these two points. Dealing firstly with the issue of the competence of the order against SAMWU, there is little doubt that SAMWU as a trade union representing its members, and considering the provisions of section 200 of the Labour Relations Act (LRA),[2] may be involved in the instigating of and participation in, through its officials, office bearers and / or leadership, strike action. As a registered trade union, SAMWU would have the duty and responsibility to exercise proper control over its membership and act positively to attend to and bring about the end of any misconduct by its membership. In Commercial Stevedoring Agricultural and Allied Workers Union and Others v Oak Valley Estates (Pty) Ltd and Another[3], for example, the Court, in upholding the confirmation of a rule nisi against a trade union and one of the leaders of the trade union, had the following to say:

‘… Likewise, Mr Swart’s arrest for intimidation linked both him and CSAAWU to the ongoing unlawful conduct or, at a minimum, to the threatened unlawful conduct. Mr Swart was both a CSAAWU leader and its mouthpiece during the strikes. He also admitted to being present at the picketing site on several occasions. His arrest occurred in the midst of ongoing common cause acts of unlawfulness on Oak Valley’s property, and numerous instances of alleged intimidation of its employees. In that context, Oak Valley’s fear that Mr Swart and CSAAWU would intimidate its workers, or encourage unlawful activity, could hardly be faulted as unreasonable. …’

[7] It is therefore clear, in my view, that SAMWU can be held bound to the obligations as set out in the rule nisi. As said, it has the duty and responsibility, being an active participant in all the material events in this case, to ensure that the prohibited unlawful action is not perpetrated by its membership. And as to the issue of the declaratory relief sought, relating to whether an unprotected strike exists, that order certainly can operate against SAMWU, as the responsible and involved trade union in this case representing and acting in the interest of its membership. The first preliminary issue raised by SAMWU is therefore rejected.

[8] This brings me to the personal service point. There is a simple answer to this point. In terms paragraph 5 of the rule nisi granted by Mabaso AJ, there are specific prescripts as to how the order was to be served. This did not include a requirement that

personal service must be effected on each of the employees listed in the order. I am satisfied that service of the rule nisi was effected in terms of paragraph 5 of the rule nisi, and as such, insofar as it concerns the issue of service of the order, there is nothing standing in the way of the confirmation

thereof.

[9] Nonetheless, and on the facts, it is undeniable that the employees were fully aware of the terms of the rule nisi. In the answering affidavit filed by SAMWU in anticipating the rule nisi, it is stated that the general secretary, Gauteng Province of SAMWU, read the terms of the order of 28 July 2023 to all employees that remained gathered at Tshwane House in the City, on 31 July 2023. It was explained to the employees what the order meant, and what they had to do to comply. It was certainly undisputed that SAMWU itself was served with the rule nisi and fully aware of the terms of the orders contained therein.

[10] I am convinced that the service point raised by SAMWU is entirely opportunistic, and nothing else but a contrived attempt to escape the confirmation of the rule nisi. It has no substance in fact, nor in law. The point is refused.

The Relevant Background

[11] Before setting out the background in this matter, it must be said that there are some material factual disputes at the heart of the matter. Those disputes are firstly whether the employees where embarking upon strike action in the first place and / or were

continuing with any strike action. The second issue firmly in dispute was whether SAMWU and the employees were in any manner involved in or had perpetrated the unlawful behaviour complained of by the City, and / or whether such behaviour was continuing.

[12] Just like any other application in which final relief is sought, being the case in casu, these factual disputes fall to be resolved on the basis of the principles as set out in Plascon Evans Paints v Van Riebeeck Paints[4], which are as follows:

‘It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact …

[13] Applying the aforesaid, ‘admitted facts’ include facts, even though these facts may not have been formally admitted in the answering affidavit, cannot be denied.[5] These are also facts which, as held in Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others[6], have ‘inherent credibility’.

[14] As to what may constitute a real, genuine or bona fide disputes of fact, the Court in SA Football Association v Mangope[7] held:

‘A real dispute of fact will not arise therefore if the respondent relies merely on a bare denial of the applicant's allegations or simply puts the applicant to the proof of allegations and in effect indicates no intention to lead evidence disputing the truth of the applicant's allegations. Bare denials will not suffice to give rise to a dispute of fact where the facts averred fall within the knowledge of the denying party and no basis is laid for disputing the veracity or accuracy of the averment. There is accordingly a duty upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his or her client disputes and to reflect such disputes fully and accurately in the answering affidavit. …’

Or further, as said in Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another[8]:

‘… the respondent's version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly

untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected …’

[15] Turning to the relevant facts in casu, arrived at by way of the application of the above principles, it is firstly pointed out that the financial difficulties that exist at the City are well known. It is these financial difficulties that constitute the basis of all that ultimately happened in this case. But it is an unfortunate reality that could not have come as a surprise to SAMWU or its membership.

[16] The City, being a metropolitan municipality, resorts within the scope and jurisdiction of the South African Local Government Bargaining Council (SALGBC). The City is a member of the South African Local Government Association (SALGA), and it is represented at the SALGBC by SALGA, on all issues relating to collective bargaining. Collective bargaining on wages and conditions of employment are in fact conducted at a central level in the SALGBC.

[17] On 15 September 2021, the trade union parties in the SALGBC, which includes SAMWU, and SALGA, concluded a collective agreement relating to wages and conditions of employment under the auspices of SALGBC. This agreement will be referred to in this judgment as ‘the 2021 collective agreement’. This was a three years’ agreement, encompassing the 2021 / 2022, 2022 / 2023 and 2023 / 2024 years. The 2021 collective agreement also determined increases in these years for the employees.

[18] The City however took issue with the 2021 collective agreement on the basis of affordability, and was unable to budget for any increases. It consequently applied for exemption from the terms of the same to the SALGBC in March 2022. This exemption application was refused by the SALGBC. The City then sought to pursue a review application to this Court against such refusal. This application is still ongoing. In the interim the City has not implemented the 2021 collective agreement for the 2021/2022 year.

[19] In 2023, the City once again resolved not to implement the increases contemplated by the 2021 collective agreement, for the next year, and was unable to budget for it. Another exemption application followed in 2023, which is still in the process of being determined by the SALGBC.

[20] Needless to say, the above state of affairs did not sit well with SAMWU and its membership (the employees). On 20 July 2023, SAMWU sent a letter to the City, requesting it to reconsider the decision not to honour the 2021 collective agreement. The City however reiterated, in response, that it stood by its position and would continue with seeking exemption.

[21] This position adopted by the City then prompted the employees to embark upon an unprotected work stoppage on 24 July 2023. In the

course of this action, the employees interrupted ordinary service delivery functions, and intimidated other employees and members of the public. In several instances, other non-striking employees were prevented from fulfilling their duties. On 24 July 2023, the City disseminated a number of circulars / ultimatums to the striking employees, calling upon them to return to work and to desist from their unlawful behaviour.

[22] The conduct of the employees left the City’s electricity grid exposed to damage and risk of power failures not being attended

to. The City also had to interrupt bus services in certain areas because of the unlawful conduct by striking employees. Essential

service delivery was certainly compromised. This compelled the City to release a statement to residents of the City on 25 July 2023, as to the consequences of the unlawful conduct of the employees. The unprotected strike action and unlawful conduct of the employees persisted on 24, 25 and 26 July 2023. In the answering affidavit, SAMWU has at least admitted that the employees in region 4 was on a go-slow on 25 July 2023.

[23] It must also be stated that SAMWU, on 12 July 2023, had called for a general meeting with its members in terms of the SALGBC collective agreement, which provided for its entitlement to call for such a meeting. Approval was granted by the City on 14 July 2023. The

general meeting was scheduled and approved for 26 July 2023. At the stage of the approval of the meeting on 14 July 2023, the employees

had not yet embarked upon the course of action referred to above. In terms of the SALGBC collective agreement, such a general meeting may only endure for two hours, and must be peaceful and controlled. Allowing time for employees to disperse, the total time for which the meeting was approved was from 11h00 to 14h00, on 26 July 2023.

[24] However, and instead of a meeting with its members, SAMWU organised a march on 26 July 2023. This march started at 09h00 from the Marabastad Putco depot and then moved to Tshwane House in the City, where SAMWU and its membership sought to present a memorandum

to the Executive Mayor. The cause of complaint in such memorandum was the implementation of the 2021 collective agreement. However, no such march was ever approved. This march further interrupted service delivery, and due to unlawful conduct during the course of this march, a number of buildings where the City rendered services to the public had to be closed. This included licencing offices and service centres. A number of employees were also arrested for unlawful conduct on 26 July 2023, in particular for public violence.

[25] The unprotected strike and unlawful conduct by SAMWU members then continued on 27 July 2023. In a final attempt to stop the strike, the City issued a final ultimatum to the striking employees on 27 July 2023, calling upon then resume their ordinary duties by 10h30 on 28 July 2023. The City also directed correspondence at SAMWU, calling for its intervention, and imploring it to assist in having its members cease their unlawful conduct and return to work. SAMWU however did nothing to intervene.

[26] The unprotected strike and unlawful conduct by the SAMWU membership further continued on 28 July 2023. The final ultimatum was not adhered to. The City was then compelled to bring the urgent application that same day, which came before Mabaso AJ that afternoon

and it led to the rule nisi granted on 28 July 2023.

[27] SAMWU requested a meeting with the City to further discuss the implementation of the 2021 collective agreement, despite the clear

position adopted by the City, which had always been made clear to SAMWU. Nonetheless, this meeting was agreed to and took place on 29 July 2023. The meeting however fell apart due to unlawful conduct by several SAMWU members. Several members started pelting city officials with stones, and 11 of them were arrested. The City has conceded that in this meeting SAMWU at least did attempt to placate the membership, but to no avail.

[28] According to the City, SAMWU and the employees did not comply with the terms of the order as contained in the rule nisi. This led to a contempt of Court application, brought on 3 August 2023 by the City. This contempt application came before Van Niekerk J on 4 August 2023. The learned Judge, in a judgment handed down on 7 August 2023, refused the contempt application, for reasons that need not burden this judgment. There were however some pertinent findings of fact made by the learned Judge, which are important in deciding this application, and which will be dealt with later in this judgment.

[29] Undeterred, the City brought another contempt application on 11 August 2023, which came before Baloyi AJ on 15 August 2023. The application was struck from the roll by the learned Judge, for want of compliance by the City with the Practice Manual.

[30] According to SAMWU (in the answering affidavit), the employees, after the granting of the rule nisi on 28 July 2023, resumed their duties and did not persist with any unlawful action. Also, according to SAMWU, it took all the necessary steps to ensure that the order was complied with, and thus there is no need for the rule nisi to be confirmed. In my view, these versions are completely lacking in credibility, even applying the Plascon Evans test as summarized above. The versions are bald and uncreditworthy, and overall implausible and untenable. This is especially so considering the core cause for everything was that SAMWU and the employees sought to compel the City to adhere to the 2021 collective agreement, which is an issue that still remains very much alive and in the forefront of the minds of SAMWU and the employees. In my view, they would not give up until they get what they want.

[31] On the other hand, and according to the City, the strike is continuing. It pointed out that it is still widely reported in the media that this indeed the case, with media footage confirming this to be the case. In the replying affidavit, and in response to what is in essence a bald denial by SAMWU and the employees, the City has produced substantiated evidence of the fact that the employees were continuing with the strike action and unlawful conduct in the period 7 to 10 August 2023. Part of the City’s Centurion offices were also burnt on 10 August 2023.

[32] The City has offered a detailed exposition, supporting by confirmatory affidavits and photographic material, of continuing strike action and unlawful conduct by the employees for the entire period from 11 August 2023 until 6 September 2023. There is no purpose in repeating all this detail in this judgment. Suffice it to say, this evidence, which cannot be denied, certainly points to an

ongoing strike and continued unlawful conduct by the employees for this entire period.

[33] Despite having the opportunity to do so in their answering affidavit, SAMWU has presented very little in the way of evidence to indicate that it took any effort to properly intervene and stop what was happening. In fact, it would seem that SAMWU, at best, has adopted a laissez faire attitude to what is happening, and in essence has blamed the City’s refusal to comply with the 2021 collective agreement, as the reason for what was happening. On the facts as they stand, and other than two individual instances of seeking to control the employees, SAMWU actually did nothing to stop what was transpiring. It is in my view that this was likely by design.

[34] The above being the pertinent facts, I will now turn to deciding whether the City, based on these facts, has made out a case for the final relief it seeks.

Analysis

[35] When confronted with what is believed to be unprotected strike action, employers often approach this Court by way of an urgent application, seeking in essence two kinds of relief. The first leg of the relief sought is declaratory relief, being an order declaring the conduct of the employees to constitute unprotected strike action. The second leg of the relief is interdictory relief, seeking to interdict the employees from continuing with the unprotected strike action, and unfortunately also often unlawful behaviour associated with it. In line with this approach, this is exactly the relief sought by the City in its original notice of motion and which relief was granted by Mabaso AJ by virtue of the rule nisi of 28 July 2023.

[36] This kind of interdictory relief serves an important purpose. In Oak Valley supra[9] the Court said:

‘In a constitutional order, interdicts occupy a place of importance. In granting an interdict a court enforces ‘the principle of legality that obliges courts to give effect to legally recognised rights’. The purpose of injunctive relief is to ‘put an end to conduct in breach of the applicant’s rights’. An interdict is intended to protect an applicant from the actual or threatened unlawful conduct of the person sought to be interdicted. Thus, for an interdict to be granted, it must be shown, on a balance of probabilities (taking into account the Plascon-Evans rule, where final relief is sought on motion), that unless restrained by an interdict, the respondent will continue committing an injury against the applicant or that it is reasonably apprehended that the respondent will cause such an injury. The requirement of a ‘reasonable apprehension of injury’ was explained by the then Appellate Division in Nordien:

‘A reasonable apprehension of injury has been held to be one which a reasonable man might entertain on being faced with certain facts. The applicant for an interdict is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow: he has only to show that it is reasonable to apprehend that injury will result. However, the test for apprehension is an objective one. This means that, on the basis of the facts presented to him, the Judge must decide whether there is any basis for the entertainment of a reasonable apprehension by the applicant.’’

[37] On the facts, I have little doubt that the employees embarked upon strike action, and remained on strike. There was no attempt to comply with the procedural requirements under section 64(1) of the LRA[10], and the issue in dispute forming the subject matter of the strike would in any event be an issue where strike action would be

prohibited by virtue of section 65(1)(c) of the LRA,[11] rendering the strike unprotected. As such, the City has a clear right to the declaratory relief sought. I say this despite the argument presented by SAMWU and the employees that they were never striking, that no demand was tabled to the City, and they were only attending an approved meeting and waiting for a response to that meeting. It is in this context that the judgment of Van Niekerk J on 7 August 2023 in the contempt application is important. In opposition to the contempt application, SAMWU raised exactly the same facts now being raised in opposition to the rule nisi. One can do little better than to refer to the following conclusion by the learned Judge where it came to these defences on the facts:[12]

‘The union’s version that it did not call a strike and knows nothing about it, is patently false. In the answering affidavit, the second respondent records that after the order was granted on 28 July 2023, he held a meeting with the applicant’s officials on 29 July 2023, and again on 31 July 2023. At this meeting the order was discussed, as the parties’ respective positions on the issue of the implementation of the increase provided by the collective agreement. On the same date, the second respondent states that he read the order to union members and advised them to observe its terms. It is entirely disingenuous for the second respondent to suggest, as he does, that the union has not made any demand of the of the applicant. On its own version, the union is aggrieved at the tabling of a zero increase budget by the applicant, its seeking of an exemption from the collective agreement and the application to review and set aside the refusal to grant the exemption. The action taken by the union’s members, all in union T-shirts and other apparel clearly identifying them with the union, is nothing less than combined action with the purpose of remedying a grievance, thus satisfying the definition of a strike for the purposes of section 213 …’

[38] I appreciate that these findings of Van Niekerk J were made in the context of a contempt of Court application, and thus that cause of action and the relief sought in that case, and the matter in casu, would not be the same, even if the parties are the same and the facts may be the same. In short, the exceptio res judicata cannot apply in such circumstances.[13] That of course would mean that SAMWU and the employees would still be entitled to raise, in these proceedings, that there was no strike. However, the problem for SAMWU and the employees remain the factual findings made by the learned Judge, even in the context of a contempt of Court application, because these findings exist and are final and binding, and because a virtually identical factual matrix and contentions in defence to the contempt application, also principally forms the basis of the opposition by SAMWU to the confirmation of the rule nisi in casu. In order for me to find that there was no strike on this basis, I would have to conclude the findings of fact by Van Niekerk J is clearly wrong.[14]

[39] I can see no basis upon which it can be said that such factual findings by Van Niekerk J are clearly wrong. SAMWU and the employees were well aware of the content of the judgement of Van Niekerk J and what the learned Judge had said about their version, when they filed the answering affidavit. Yet they made no attempt to deal with the judgment, provide any substantiation for a contention why such factual findings of the learned Judge may be in error, and why an alternative finding of fact should be arrived at by this Court. Not only do I not see any basis to upset these factual findings, but it is also my view that the same is undoubtedly

correct.

[40] As stated above, I am satisfied, even considering the denials of strike action by SAMWU and the employees in the answering affidavit, that there is no substance in this denial and that they indeed embarked upon unprotected strike action as from 24 July 2023, and that such strike action, despite the order of 28 July 2023, still persists. The facts as put forward by the City in the replying affidavit relating to all the events and conduct after 28 July 2023,[15] simply cannot be denied, especially considering the bald and general denials, and implausible versions, offered by SAMWU and the employees in the answering affidavit. A prime example to illustrate the implausibility of SAMWU’s version is that SAMWU relies on the approved meeting of 26 July 2023 as basis to establish that they were not striking and only attending a meeting, but fails to in any manner deal with the events on 24 and 25 July 2023 (the days before the meeting), and that what ultimately happened on 26 July 2023 was not a meeting, but a march.

[41] In any event, and where it comes to the confirmation of the rule nisi relating to the declaratory relief of strike action being declared to be unprotected, all the City would need to show is that there indeed existed an unprotected strike which justified the granting of the rule nisi, on the return date. There can be no doubt, considering a number of admissions SAMWU and the employees themselves made as to events on 25 and 26 July 2023, and the undeniable facts as they emerge from the affidavits, that this is the case.

[42] As touched on above, SAMWU also argued that there was no strike because there was no demand. This is simply an opportunistic suggestion, and has no merit. In terms of section 213 of the LRA, a strike is defined as: ‘… the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee …’. In this case, there was undoubtedly a retardation / obstruction of work, and the purpose of this was to express the dissatisfaction by SAMWU and its membership of the City’s refusal to comply with the 2011 collective agreement and instead seek exemption at the SALGBC, and to compel the City to abandon its ways and adhere to such agreement. The purpose of this action therefore, in my view, was seeking to resolve a grievance, an intention already appreciated by Van Niekerk J. It may be added that this grievance persisted throughout, and still persists to date. This falls squarely within the ambit of what is defined as a strike under the LRA, as its purpose is to get the City to comply with the 2021 collective agreement. In National Union of Mineworkers on behalf of Employees v Commission for Conciliation, Mediation and Arbitration and Others[16] it was held as follows:

‘A strike, as defined, has three key characteristics:

1 there must be a requisite act or omission;

2 it must be concerted; and

3 it must be directed at the achievement of a specified purpose.’

All these boxes are ticked in casu.

[43] Comparable to the case in casu is the judgment in City of Johannesburg v Democratic Municipal and Allied Workers Union of SA and Others[17], where the Court had the following to say about what would constitute participation in strike action:

‘… It is not in dispute that the duties that are the subject of the individual respondents’ refusal are contractual duties; indeed, the obligation to respond to call-outs lies at the core of their employment contracts. It seems to me therefore that on the respondents’ own version, the principle established in the National Union of Mineworkers judgment applies — ie where the work forms part of employees’ contractual duties, a refusal to perform It will fall within the definition of a ‘strike’ even If the refusal is a response to what is contended to be unlawful conduct (in the form of a breach of contract) by the employer (see Du Toit et al Labour Law Thorough the Cases (Lexis Nexis LRA 9-26). It is clear from the papers that the individual respondents regard their interpretation of the HPCSA guidelines as terms and conditions of their engagement — the nature If the grievances raised in respect of this issue since 2016 suggest that the individual respondents’ complaint is in essence one about working conditions in the form of the staffing of ambulances. Insofar as the other elements of the definition of a strike are concerned, on their own version, the individual respondents’ refusal to perform their duties is causally linked to a grievance. In their affidavit, the individual respondents locate the source of their discontent in the grievance lodged as far back as mid-2016. Their current refusal to work is in pursuit of the same grievance. There is no dispute that the action of the individual respondents is concerted. All four of the elements of the definition of a strike being present, the individual respondents’ refusal to work constitutes a strike. …’

[44] Concerning SAMWU itself, it seems that this is not its first rodeo when seeking to argue that there was no strike where it comes to opposing the confirmation of a rule nisi. In Johannesburg Roads Agency (Soc) Ltd v SA Municipal Workers Union and Others[18], SAMWU similarly argued that all the employees were doing was participating in an approved meeting and was just waiting for feedback from the employer. The Court had the following to say, in circumstances comparable to the case in casu:[19]

‘Insofar as the respondents contend that there was no strike because they were ‘waiting for feedback’ from the applicant, there is no merit to this submission. The undisputed facts are that the individual respondents left their places of work on the morning of 5 April 2019, and that by 09:00, none of them were at their workplaces. It is also not disputed that they failed to return to work until later the same afternoon, sometime after 15:00. Further, it is not disputed that the purpose of the applicants’ leaving their places of work (and thus refusing to work) was a concerted act that had as its purpose the demand that the dispute concerning historical pay progression be addressed. I fail to appreciate how it can be said that there was no strike in these circumstances. There was a concerted refusal to work (at least between 09:00 and 15:00 on 5 April 2019) for the purpose of remedying a grievance or resolving a dispute. The respondents do not dispute that none of the procedural requirements for the exercise of the right to strike were fulfilled.’

[45] I accept that what happened in the case in casu was nothing other than strike action embarked upon by SAMWU and its membership, starting on 24 July 2023, which action arose because the City, instead of complying with the 2021 collective agreement, sought exemption from its terms at the SALGBC. These intentions of the City caused SAMWU and its members to be aggrieved, and the action embarked upon by them was designed to, and had the purpose of, compelling the City to change its position and agree to implement the 2021 collective agreement. This grievance continued to persist, along with the obstruction and retardation of work, as from 24 July 2023, and still highly likely to date. I therefore reject the contention by SAMWU that there was no strike.

[46] A critical consideration is the fact that the underlying dispute between the parties, being the issue of the City complying with the 2021 collective agreement, remain very much unresolved and undoubtedly live. It is this very issue that gave rise to the strike

in the first place. The fact that the dispute remains live is evidenced by the events after 24 July 2023, the ongoing litigation

between the parties to follow relating to the City’s attempts to seek exemption from the 2021 collective agreement, and in fact the continued complaints by SAMWU and the employees themselves set out in the answering affidavit in this regard. This Court has consistently adopted the view that where the underlying dispute giving rise to the strike remained unresolved, it remains competent to declare the strike unprotected, even if the strike action itself had ended.[20] So even if SAMWU and the employees are correct in their assertion that the work stoppages / retardation by the employees have ended, it does not stand in the way of the confirmation of the rule nisi relating to the declaratory relief sought. The following dictum in Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others[21], penned by the Court in the context of the confirmation of a rule nisi declaring a strike unprotected, is apposite:

‘Counsel for the respondents argued that the appeal has become moot with the passage of time and will have no practical effect. That is not correct. There is a live dispute between the parties about the legal character and consequences of the strike that has continued relevance in the on-going industrial relations in which they are involved. The appellants legitimately seek judicial affirmation of their stance in regard to the appropriate means of resolution of a dispute of this nature …’

[47] SAMWU and the employees further argue that to confirm the rule nisi with regard to declaring the strike unprotected, would undermine or compromise the right of SAMWU and its members to effectively conduct collective bargaining, going forward. It would seem that this is another go-to argument used by SAMWU in seeking to defeat the confirmation of interim orders, and has been dealt with by this Court before. I again refer to Johannesburg Roads Agency supra in this regard, where the Court had the following to say:[22]

‘I fail to appreciate how it can be said that the granting of the rule nisi or its confirmation will have the effect of ‘subduing’ collective bargaining in the applicant’s workplace. The respondents clearly have an impoverished conception of the institution of collective bargaining, one that extends to a right to resort to unlawful action in the form of damage to property in pursuit of a demand made of an employer. As the recently published Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (the code) notes, good faith bargaining requires that the parties should engage each other in a constructive manner and not act unreasonably. Negotiations should be conducted in a rational and peaceful manner in which disruptive and abusive behaviour is avoided. The individual respondents acted in breach of the code — they resorted to what amounts to disruptive behaviour and wanton damage to property only because the applicant had not acceded to their demands. Insofar as the respondents seek to rely on the right to strike to justify their conduct, the code recalls that the constitutional right to strike is not unlimited. It is subject to substantive and procedural limitations, all of which are designed to maintain the integrity of the process of collective bargaining and to protect the constitutional rights of others. The rights to bargain collectively and to strike do not extend to the trashing of an employer’s premises and public spaces.’

[48] There is accordingly no substance in the argument that the confirmation of the rule nisi would in any manner compromise SAMWU and its members’ rights relating to collective bargaining. In addition to the apposite comments made by the Court in Johannesburg Roads Agency supra, I must point out that the order in casu relates to a fact specific situation, being a grievance concerning compliance with the 2021 collective agreement. It is difficult to understand how the granting of such an order would compromise collective bargaining going forward on any other topic. Instead, it can do nothing more than to impress upon SAMWU and its membership that it would be far more appropriate, and in fact required, that any dispute or issue as to compliance with the 2021 collective agreement be resolved by way of the legal avenues available. After all, there is already an agreement, and the issue in dispute is about enforcement / compliance. It has nothing to do with collective bargaining.

[49] I therefore accept that there simply exists no basis or reason why the rule nisi where it comes to the declaratory relief sought by the City in paragraph 2.1 thereof, cannot be confirmed as a final order. For the same reasons, the interdictory relief in paragraph 2.2 of the rule nisi must also be confirmed, being inextricably linked to the declaratory relief in paragraph 2.1.

[50] Where it comes to the remaining order in paragraph 2.3 of the rule nisi, SAMWU and the employees do not really dispute that all the instances of unlawful conduct complained of by the City indeed happened. They simply say that it was not them. Therefore, the main defence by SAMWU and the employees is that the City has been unable to prove (positively link) which of the employees had been perpetrating the conduct complained of, and as such, the rule nisi in this regard cannot be confirmed. It is of course true that in Oak Valley supra, the Constitutional Court held that an employer is required to establish a link between the perpetrators of the unlawful conduct and the conduct itself, in order to obtain a final interdict. The Court held:[23]

‘The requirement of a link, which has, save for a few instances, been consistently applied by our courts, appropriately balances these conflicting interests. On the one hand, it ensures that interdicts are not granted indiscriminately. On the other, it affords employers the required measure of protection. The requirement does not entail that an employer must lead direct evidence establishing conclusively that the interdicted employee was responsible for specific unlawful conduct. The employer could discharge its onus by putting up facts from which an inference can be drawn that it is more probable than not that the employee herself engaged in unlawful conduct or associated herself with it.’

[51] However, the Court in Oak Valley did not limit the enquiry to this simple and straight forward proposition. The Court recognised that the necessary link between the unlawful conduct and the employees can still be established if it can be shown that the employees acted as a cohesive group. The Court concluded:[24]

‘… the necessary link can however be established where the protesters or strikers commit the impugned unlawful conduct as a cohesive group. Whether this is established will, of course, turn on the particular facts of the case. Where, for instance, 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 it is reasonably apprehended that they will cause injury to the applicant. 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 those acts of unlawfulness can permissibly be placed under interdict. In addition, where a strike is beset by unlawful conduct and large numbers of protesters or strikers deliberately conceal their identities — for instance, through the wearing of masks — a court may be entitled to more readily conclude that an applicant has a reasonable apprehension that the participants in the strike will cause it injury …’

[52] There can be little doubt that the employees in the current case are acting as a cohesive group in order to exert maximum pressure on the City to capitulate, cease seeking exemption from the 2021 collective agreement, and give them their increases. That is something, after all, they all want. Further, it is quite clear on the facts that the strike is unprotected and is perpetrated in a violent and unlawful manner, with regular incidents of violence, damage to property, and intimidation. Then, and considering the approach adopted by SAMWU of in essence daring the City to identify perpetrators before being able to take any action, there can be no doubt that hiding in the anonymity of the mob is a strategy being deployed. This kind of behaviour is intolerable. The City’s continued apprehension of harm is justified.

[53] The issue of the identification (linking) of individual perpetrators was also dealt with in Johannesburg Roads Agency supra. The Court accepted that this was not a prescribed requirement for confirmation of the rule nisi, and that it is simply not practicable to do so. The Court explained it as such:[25]

‘Insofar as the respondents rely on the applicant’s failure to identify and cite particular individuals that it has identified as having committed acts of misconduct, it is not practicable in matters such as the present to demand that only individuals positively identified be cited as respondents. The context in which the application was brought is one where the union’s members were aggrieved at the applicant’s response to their demands and where the union and its members resolved to march en masse to the applicant’s office. Given that the relief sought and granted prohibited the individual respondents from committing acts of serious misconduct (most of which constitute criminal offences), it was not unreasonable for the applicant to cite the individual respondents in the manner it did. That is not to say that all of them actually committed acts of misconduct — they were simply prohibited from doing so. Should there be any disciplinary consequences following the events of 5 April 2019, of course, a different test applies and it would ordinarily be necessary for the applicant to identify those employees who perpetrated acts of misconduct. But for the purposes of an urgent interim order in which employees are prohibited from committing acts that are in any event unlawful, it is not necessary for an applicant to establish that each and every respondent in fact committed the misconduct complained of. To the extent that the respondents’ counsel submitted that the acts committed were not sanctioned by the union, there is nothing on record to establish that the union either distanced itself from those acts, or that it took any steps to prevent them being committed …’

[54] I agree with the views of the Court in Johannesburg Roads Agency, especially considering the facts in casu. There can be little doubt that on the facts, there are continued and sporadic acts of violence and intimidation, and damage to property. SAMWU and the employees seek to hide behind the anonymity of individual perpetrators to escape being held accountable. If it was always necessary to positively identify all perpetrators when seeking to interdict unlawful conduct during a collective event such as a strike, such relief will more often than not be impossible to obtain. Further, identifying a limited number of individuals and obtaining an order against them only, is unhelpful, as it would ordinarily leave the bulk of possible perpetrators

uncovered. It must also be remembered that all an employer is doing in a case such as this is to try and secure that striking employees

behave lawfully, and unfortunately, this is necessary because of the high prevalence of violence and intimidation during strikes, which should not happen in the first place. And added to this, there is little or no evidence of SAMWU distancing itself from what is being perpetrated, or taking any action to try and stop it.

[55] Further, in my view, it is simply unlikely that random persons would attack the City’s infrastructure and property, and intimidate other employees, as suggested by SAMWU in argument. And it must be more than mere coincidence that all this started and then continued whilst the employees are pursuing unprotected strike action because they are aggrieved due to them not getting an increase in terms of the 2021 collective agreement.

[56] The duty and responsibility of SAMWU should equally not be underplayed. As stated above, it is obliged to ensure that its members act lawfully and take positive action, when confronted with any unlawful behaviour by its members, to stop such behaviour. Preferably, such intervention should be transparent, in order to show the employer and third parties that it is doing what is expected of it. But to simply follow an approach that what is happening is not its problem, is not acceptable. SAMWU, once again, had the opportunity to expand on all its efforts taken to ensure that its membership behaved, in the answering affidavit. It did not do so. Instead, it adopted an approach that the City must prove exactly what members were involved, and since it could not, it washed its hands of what was happening. I believe this is a factor that weighs in heavily in confirming the rule nisi. In Kouga Local Municipality v SA Municipal Workers Union and Others[26] the Court held, with specific reference to SAMWU:

‘… The violent actions of the second to further respondents does not go unnoticed by this court. It is unbecoming of a union of the stature of the first respondent not to have control of its members when exercising the right to strike — a right which was hard fought for pre-1994 and which is now protected by s 17 of the Constitution of the Republic of SA 1996 and chapter IV of the LRA. In our constitutional democracy, the leadership displayed by unions to ensure the lawful exercise of the right of employees to embark on strike action is pivotal. Union leadership is instrumental in ensuring property and lives are not harmed during strike actions. It is clear that the first respondent’s leadership of the second to further respondents in this matter is lacking.’

[57] A further issue raised by SAMWU is that the City was dismissing employees on the basis of purported non-compliance with the rule nisi. SAMWU conceded that it was well aware that such dismissals are susceptible to being challenged as unfair dismissals in the SALGBC,

and that SAMWU was in the process of doing so. Despite this, and according to SAMWU, the City would use a finally confirmed rule nisi as some kind of weapon to effect arbitrary dismissals of SAMWU members. I am unconvinced that this is a realistic concern which

could stand in the way of a confirmation of the rule nisi. A final order in this case, which is essence grants declaratory and interdictory relief in respect of strike action, and interdicts

unlawful behaviour in general as a result of the same, is of little value in establishing the existence of misconduct committed by individual employees. There is a difference in threshold as to what must be proven in the case where an interdict is granted, and where the dismissal of an employee is pursued.[27] In order for the City to successfully establish that its dismissal of SAMWU members for either participating in the strike or being

involved in unlawful conduct is fair, it would have to prove the individual employee concerned was involved in or committed the

misconduct for which the employee was dismissed, despite the final order in this case. In National Union of Metalworkers of SA on Behalf of Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd[28] the Court held as follows:

‘… an interdict is distinguishable because — although it may concern conduct that is already taking place — it is often concerned with future conduct. It may not be necessary to obtain an interdict against an employee who has readily undertaken not to participate in any future unlawful action. Where there is no such undertaking, an interdict is usually warranted. Past conduct founding disciplinary action is on a different footing.

On the other hand, it would definitely be a non-starter to suggest that an employee could be dismissed on the basis that — through common purpose — she or he was ‘involved’ in acts of violence without linking that employee to those acts. …’

[58] The City has indicated that it is currently conducting a comprehensive investigation in order to link employees to misconduct, and then take the appropriate action. The City is clearly alive as to what is required of it where it comes to substantiating the dismissal of employees. I am satisfied that in seeking to confirm the rule nisi, the City does not have an ulterior motive in mind relating to using it, per se, as some kind of mechanism to bring about the dismissal of employees.

[59] There was simply no justification or cause for SAMWU and the employees to have acted as they did. The City was always transparent of its intentions where it came to compliance with the 2021 collective agreement, by not budgeting for increases in terms of it and indicating that due to a severe lack of funds it would seek exemption from such agreement. SAMWU and the employees not only have perfectly suitable other remedies available to them, but these remedies are actually prescribed remedies. These remedies include opposing the exemptions, or seeking the enforcement of the 2021 collective agreement by way of arbitration in the SALGBC. To seek to utilize unlawful means to exert pressure on the City to give SAMWU and the employees what they want with regard to compliance with the 2021 collective agreement is an untenable proposition, and cannot be allowed. The only way to stop this kind of behaviour is by way of an interdict.

[60] In sum, the City has also done enough to satisfy the confirmation of the rule nisi relating to the interdicting of the unlawful behaviour by SAMWU and the employees, as contemplated by paragraph 2.3 of the order. The granting of a final order in this regard is thus appropriate.

[61] The City has indicated that a final interdict is necessary in order to protect the interests of the residents of Tshwane. Considering what happened in this case, I am compelled to agree. All the City wants to do is to stop unlawful behaviour and so protect service delivery to residents of the City, that is already severely compromised. The apparent inability of SAMWU to manage and control its membership and take positive and definitive action to resolve the unlawful conduct by its membership compounds the harm. There is no other way in which the City can prevent such harm or risk of harm, other than by way of a final interdict.

Conclusion

[62] In sum, and for all the reasons as set out above, I am satisfied that the applicants have made out a proper case for the final relief they seek, and that a confirmation of the rule nisi issued by Mabaso AJ on 28 July 2023 is justified. The rule nisi is therefore susceptible to being confirmed as a final order, which I hereby do.

Costs

[63] Where is comes to the issue of costs, I have a wide discretion in terms of section 162(1) of the LRA. I do consider that the parties have an ongoing relationship, and there is the possibility of future legal proceedings between the parties, especially considering the 2021 collective agreement. I am also alive to what the Court said with regard to costs in employment disputes in Union for Police Security and Corrections Organisation v SA Custodial Management (Pty) Ltd and Others[29] which is that when making a costs order in a labour matter, a Judge is required to consider that costs are not ordinarily awarded, the principle of fairness must be considered, and due regard must be had to the conduct of the parties.

[64] However, and in this case, the conduct of the individual respondents are deplorable. The trend of strike action being accompanied by violence, intimidation and damage to property must be discouraged in the strongest possible terms, which would obviously include appropriate costs orders. I also consider that SAMWU did very little to intervene in what was happening and instead resorted to several spurious defences in order to defeat the rule nisi. It never acknowledged that there was wrongdoing, and never expressed an intention to help to stop it. The action needed to be taken by the applicants to defend themselves and the residents of the City against what was nothing else but unlawful behaviour had to be funded out of the already stretched and slim City coffers, taking away funds desperately needed for service delivery. What makes it worse is that in Johannesburg Roads Agency supra, SAMWU and its members followed very much the same kind of approach, and a costs order was meted out to them, with the following dictum from such judgment being apposite:[30]

‘… In the present instance, the respondents participated in an unprotected strike. They did so in aggravating circumstances, in the form of the acts of wanton destruction that took place at the applicant’s premises. The costs of the repair of the damage that occurred is ultimately for the cost of the ratepayers of Johannesburg. I fail to appreciate why they should be expected to underwrite the costs of the present proceedings. As I have indicated, the union took no steps to prevent the trashing that occurred, and is unable to point to any disciplinary action taken by it against any member for doing so. The union is accountable for the actions of its members and it seems to me that the appropriate order is one that requires the union to pay the costs …’

All considered, it is my view that the granting of a costs order against the respondents would be justified and appropriate in this this case.

Order

[65] For all the reasons as set out above, I make the following order:

1. The rule nisi issued on 28 July 2023 is confirmed as a final order.

2. The respondents are ordered to pay the applicants’ costs, jointly and severally, the one paying the other to be absolved.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants: Advocate L Hollander

Instructed by: Lawtons Africa Inc Attorneys

For the Respondents: Ms G C Phakedi of Phakedi Attorneys Inc

[1] Setlogelo v Setlogelo 1914 AD 221 at 227; V & A Waterfront Properties (Pty) Ltd and Another v Helicopter & Marine Services (Pty) Ltd and Others 2006 (1) SA 252 (SCA) at para 20.

[2] Act 66 of 1995 (as amended). Section 200(1) reads: ‘A registered trade union or registered employers' organisation may act in any one or more of the following

capacities in any dispute to which any of its members is a party- (a) in its own interest; (b) on behalf of any of its members;(c) in the interest of any of its members’.

[3] (2022) 43 ILJ 1241 (CC) at para 64.

[4] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E 635C. See also Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C – 263D; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) paras 26 – 27; Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) para 38.

[5] Gbenga-Oluwatoye v Reckitt Benckiser SA (Pty) Ltd and Another (2016) 37 ILJ 902 (LAC) at para 16.

[6] 2005 (2) SA 359 (CC) at para 53.

[7] (2013) 34 ILJ 311 (LAC) at para 12. See also Hudson and Another v SA Airways SOC Ltd (2015) 36 ILJ 2574 (LAC) at paras 10 – 11; Oak Valley (supra) at para 46.

[8] 2009 (3) SA 187 (W) para 19.

[9] Id at para 19.

[10] Section 64(1) requires that the dispute first be referred to conciliation, be unsuccessfully conciliated, and that 48 hours’ written notice of the strike action be given.

[11] Section 65(1)(c) reads: ‘No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or

a lock-out if … the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law’. The issue in dispute in casu was compliance with the 2021 collective agreement, which is certainly an arbitrable issue in dispute.

[12] At para 12 of the judgment.

[13] In SA National Defence Union and Another v Minister of Defence and Others; SA National Defence Union v Minister of Defence and Others 2003) 24 ILJ 2101 (T) at 2109H-J, the Court held: ‘… The requisites for a valid defence of res judicata are that the matter adjudicated upon must have been for the same cause, between the same parties and the same thing must have been demanded …’. See also National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at 239F H; Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA) paras 45, 46 and 98

[14] Public Servants Association on behalf of Liebenberg v Department of Defence and Others (2013) 34 ILJ 1769 (LC) at para 22; SA Transport and Allied Workers Union and Another v Garvas and Others (2012) 33 ILJ 1593 (CC) at para 114; Gcaba v Minister for Safety and Security and Others (2009) 30 ILJ 2623 (CC) at para 58; Chizunza v MTN (Pty) Ltd and Others (2008) 29 ILJ 2919 (LC) at para 7; National Education Health and Allied Workers Union v University of Cape Town and Others (2003) 24 ILJ 95 (CC) at para 26; National Union of Metalworkers of SA v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1634 (LC) at para 22; Eskom v Hiemstra NO and Others (1999) 20 ILJ 2362 (LC) at para 17; United Transport and Allied Trade Union/SA Railways and Harbours Union and Others v Autopax Passenger Services (SOC) Ltd and Another (2014) 35 ILJ 1425 (LC) at para 55.

[15] Principally, the City’s contempt application before Van Niekerk J failed because the City failing to provide the necessary detailed facts as to events after 28 July 2023. It obviously learnt from the criticism dispensed by the learned Judge in this regard.

[16] (2011) 32 ILJ 2104 (LAC) at para 15.

[17] (2020) 41 ILJ 1959 (LC) at para 11.

[18] (2020) 41 ILJ 222 (LC).

[19] Id at para 7.

[20] See Centlec (SOC) Ltd v SA Municipal Workers Union and Others (2019) 40 ILJ 846 (LC) at paras 18 – 19; SA Post Office (Soc) Ltd v Influential Information and Communication Union of SA and Others [2019] JOL 44235 (LC) at paras 34 and 38; Johannesburg Roads Agency v SA Municipal Workers Union and Others (2015) 36 ILJ 2310 (LC) at para 11.

[21] (2016) 37 ILJ 1851 (LAC) at para 23.

[22] Id at para 9.

[23] Id at para 44

[24] Id at para 42. See also National Union of Metalworkers of SA on Behalf of Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd (2022) 43 ILJ 2269 (CC) at para 33.

[25] Id at para 10.

[26] (2021) 42 ILJ 1977 (LC) at para 5.

[27] See Johannesburg Roads Agency (supra) at para 10.

[28] (2022) 43 ILJ 2269 (CC) at paras 33 – 34.

[29] (2021) 42 ILJ 2371 (CC) at para 35. See also Zungu v Premier of the Province of Kwa-Zulu Natal and Others (2018) 39 ILJ 523 (CC) at para 25.

[30] It at para 12.