MAHLE Behr SA (Pty) Ltd v NUMSA and Others; Foskor (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March 2019)

MAHLE Behr SA (Pty) Ltd v NUMSA and Others; Foskor (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March 2019)

The court held that the transitional provisions of section 19 of the Labour Relations Amendment Act 8 of 2018 are clear and peremptory. Registered trade unions whose constitutions do not provide for a recorded and secret ballot are required to conduct a secret ballot before engaging in a strike, regardless of whether the registrar has issued a directive. The respondents' constitutions did not comply with section 95(5)(p) or (q), and no secret ballot was held. Therefore, the respondents were not entitled to engage in the strike. The court rejected the argument that the transitional provisions infringed the constitutional right to strike, finding that the requirement to conduct a secret...

Citation
[2019] ZALCD 2
Parties
Applicant: MAHLE Behr SA (Pty) Ltd; Applicant: Foskor (Pty) Ltd; Respondent: NUMSA and Further Respondents Listed on Annexure A; Respondent: NUMSA and Further Respondents Listed on Annexure X
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
20 March 2019
Case Number
D448/19;D439/19
Procedural Posture
Urgent Application / Application for Urgent Interdict Before Labour Court
Outcome
Application granted. The respondents are interdicted from engaging in the strike in the absence of a secret ballot.
Judges
D H Gush
Legal Topics
Strike Interdict, Secret Ballot Requirement, Labour Relations Amendment Act, Trade Union Registration
Labour Law Strike Interdict Secret Ballot Requirement Labour Relations Amendment Act Trade Union Registration

Case Brief

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Parties

MAHLE Behr SA (Pty) Ltd

Applicant

Foskor (Pty) Ltd

Applicant

NUMSA and Further Respondents Listed on Annexure A

Respondent

NUMSA and Further Respondents Listed on Annexure X

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Before Labour Court

Legal Issues

  1. 1 Whether the respondents were obliged to conduct a secret ballot before engaging in a strike under the transitional provisions of the Labour Relations Amendment Act 8 of 2018.
  2. 2 Whether the absence of a secret ballot rendered the strike unlawful.
  3. 3 Whether the transitional provisions infringe the constitutional right to strike.

Ratio Decidendi

The court held that the transitional provisions of section 19 of the Labour Relations Amendment Act 8 of 2018 are clear and peremptory. Registered trade unions whose constitutions do not provide for a recorded and secret ballot are required to conduct a secret ballot before engaging in a strike, regardless of whether the registrar has issued a directive. The respondents' constitutions did not comply with section 95(5)(p) or (q), and no secret ballot was held. Therefore, the respondents were not entitled to engage in the strike. The court rejected the argument that the transitional provisions infringed the constitutional right to strike, finding that the requirement to conduct a secret...

Court Disposition

Application granted. The respondents are interdicted from engaging in the strike in the absence of a secret ballot.

Orders

  • In the absence of the first respondent having conducted a secret ballot as required by section 19 of the Labour Relations Amendment Act 8 of 2018, in both matters, the respondents are interdicted from engaging in the current strikes.