New Kleinfontein Goldmine (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J 1457/2023) [2023] ZALCJHB 300; (2024) 45 ILJ 159 (LC) (24 October 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J 1457/2023

In the matter between:

NEW KLEINFONTEIN GOLDMINE (PTY) LTD Applicant And ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION First Respondent NATIONAL UNION OF MINEWORKERS Second Respondent THE PERSONS LISTED IN ANNEXURE “A” TO THE NOTICE OF MOTION Third to Further Respondents

Heard: 17 October 2023

Delivered: 24 October 2023

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them by email. The date for hand-down is deemed to be 24 October 2023.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to interdict a strike called by the First Respondent (AMCU) in support of a demand for organisational rights. At issue is whether AMCU’s members are precluded from striking on account of the existence of a closed shop agreement (CSA) concluded between the Applicant and the Second Respondent (NUM) in October 2012.

[2] The parties to the CSA recorded inter alia that the CSA and any other subsequent agreement entered into by them would be a collective agreement, that the CSA had been entered into in accordance with the provisions of section 26 of the Labour Relations Act[1] (LRA) and that two-thirds of the NUM’s members had voted in favour of the agreement. The parties agreed that all new and current employees “shall become members of NUM on confirmation of their employment” and that it is not unfair to dismiss an employee “for refusing to join the union”.

[3] Clause 5 of the CSA provides for the duration and termination of the agreement. Clause 5.4 of the CSA reads:

‘5.4. If the company is of the view that the NUM no longer has majority representation, it shall give the NUM written notice to that effect and require the NUM to establish that it [has] majority representation within 90 (ninety) days from the date of the aforesaid

notice. Should the NUM fail to establish that it has majority representation, to the satisfaction of the company, in this period,

this agreement shall automatically terminate at the end of the aforesaid ninety-day period.’

[4] Clause 5.6 of the CSA, which essentially mirrors section 26(15) of the LRA, provides that:

‘5.6 The NUM will be compelled to conduct a ballot of the members in order to determine whether the agreement should be terminated in the following circumstances if:

5.6.1 one third of the company’s employees covered by the agreement sign a petition calling for the termination of the agreement;

5.6.2 a period of 2 (two) years have elapsed since the date in (sic) which the agreement came into effect; and

5.6.3 a period of 2 (two) years have elapsed since a ballot was conducted to determine whether the agreement should be terminated.’

[5] Clause 5.7 provides that, should it be determined after conducting a ballot of the members that the CSA be terminated, it should terminate automatically.

[6] As at the time of this application, there are 1874 employees in the bargaining unit, and it is undisputed that all the individual Respondents are members of NUM. This is so by operation of the CSA.

The legal principles applicable to closed-shop agreements

[7] Closed shop agreements are defined as “agreements between an employer and a trade union requiring all employees covered by the agreement to be members of the union”.[2]

[8] It is a collective agreement concluded between the majority union and the employer in which the employees covered by the agreement are obliged to become members of the majority union.

[9] In Solidarity on behalf of Members Employed in the Motor Industry v Automobile Manufacturers Employers' Organisation & others[3], the Labour Appeal Court (LAC) confirmed that:

‘Agency shop agreements are less intrusive than closed-shop agreements which compel employees to be members of majority trade unions. An agency shop agreement does not compel membership of the union but only requires employees who benefit from the fruits of collective

bargaining achieved by the majority union to pay an agency fee.’

[10] In SA Transport & Allied Workers Union v Servest Security (Pty) Ltd—A Division of Servest Group & others[4], the court described closed shop agreements as “inherently the strongest form of union security arrangements designed to address the problem of ‘free riders’ from unduly benefiting from the efforts put into collective bargaining by a trade union which is party to the closed shop agreement”. The purpose of such an arrangement, like that of an agency shop, is to promote stable and orderly collective bargaining. The closed shop achieves this objective by stabilising union membership, limiting the proliferation of unions, removing tensions in the workplace and requiring the union to be responsible for all employees in the workplace.[5]

[11] Section 26 of the LRA regulates the conclusion, operation and termination of closed shop agreements and its provisions can be summarised as follows:[6]

‘● prior trade union membership cannot be required of work seekers [s 26(3)(c)];

• only a majority union, or two or more unions whose members form a majority of employees in the workplace or sector concerned, may enter into a closed shop agreement [s 26(1) and (2)];

• before such an agreement can take effect, a ballot must be held of the employees to be covered by the agreement and two-thirds of the employees voting must vote in favour of it [s 26(3)(a) and (b)];

• employees who are already employed at the time when the closed shop agreement takes effect may not be dismissed for refusing to join the union [s 26(7)(a)];

• employees who refuse to join the union on grounds of conscientious objection may not be dismissed [s 26(7)(b)];

• a trade union party to a closed shop agreement may not refuse an employee membership or expel a member unless the refusal or expulsion

is in accordance with the union’s constitution and the reason for the refusal or expulsion is fair [s 26(5)];

• strict controls are placed upon expenditure of union subscriptions paid in terms of a closed shop agreement [s 26(3)(d)]; and

• a closed shop agreement can be terminated by a majority of employees voting in a ballot requested by one-third of the employees covered by the agreement [s 26(15) and (16)].’

[12] Section 26 of the LRA requires that a union must qualify as a majority union in order to enter into a CSA but once it has done so, an ordinary course enquiry into whether it remains a majority union is illusionary. This is so because by operation of the CSA, underpinned by section 26 of the LRA, all employees within scope become its members, whether they like it or not. Section 26(6) provides that it is not unfair to dismiss an employee who is not a member of a trade union party to a CSA. By entering into a CSA, the trade union party to such agreement is propelled into the ranks of an exclusive union. The trade union party to the CSA enjoys 100% membership and it is evident that the LRA does not functionally support rival union membership during the existence of the CSA.

[13] In the absence of the CSA being terminated, there is no way of knowing whether the union enjoys majority support on a voluntary basis, which it had to enjoy at the outset, in order to enter into the CSA. All employees are compelled to be members of the close shop union, by operation of law.

[14] The reality is that no agreement remains evergreen, and a CSA is no exception. Section 26(10) - (16) has been designed to regulate closed shops and it provides mechanisms to loosen or break an existing CSA. The first mechanism is contained in sections 26(10) - (14):

‘(10) A registered trade union that represents a significant interest in, or a substantial number of, the employees covered by a closed shop agreement may notify the parties to the agreement of its intention to apply to become a party to the agreement and, within 30 days of the notice, the employer must convene a meeting of the parties and the registered trade union in order to consider the application.

(11) If the parties to a closed shop agreement do not admit the registered trade union as a party, the trade union may refer the dispute in writing to the Commission.

(12) The registered trade union must satisfy the Commission that a copy of the referral has been served on all the parties to the closed shop agreement.

(13) The Commission must attempt to resolve the dispute through conciliation.

(14) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.’

[15] The second mechanism is contained in sections 26(15) and (16), which read:

‘(15) The representative trade union must conduct a ballot of the employees covered by the closed shop agreement to determine whether the agreement should be terminated if –

(a) one third of the employees covered by the agreement sign a petition calling for the termination of the agreement; and

(b) three years have elapsed since the date on which the agreement commenced or the last ballot was conducted in terms of this section.

(16) If a majority of the employees who voted, have voted to terminate the closed shop agreement, the agreement will terminate.’

[16] In the absence of the CSA being loosened (by another trade union becoming a party to the CSA) or being terminated (on the basis provided for in section 26(15) to (16)), it endures.

[17] In casu, the Applicant’s case is that the CSA with NUM remains in force, with the effect that all the employees within the bargaining unit are members of the NUM by operation of the CSA and for as long as it remains in force, it cannot grant organisational rights to another union.

The sequence of events that gave rise to this application

[18] On 10 March 2023, AMCU sent a notice in terms of section 21(1) of the LRA (the organisational rights notice) to the Applicant, seeking to be granted organisational rights, as contemplated in sections 12, 13, 14, 15, 16 and 18 of the LRA. The Applicant and AMCU’s representatives met on 23 March 2023 to discuss the organisational rights notice and AMCU indicated that it had more than 1 200 signed membership forms and was seeking recognition in terms of section 23 of the LRA. At this meeting, AMCU was informed about the CSA with NUM and the parties agreed that it would be necessary to have a further meeting in order to ascertain the best way to proceed, including consultation with NUM. In the meantime, the Applicant undertook to conduct a verification process. On 29 March 2023, AMCU presented the Applicant with approximately 1200 signed membership forms.

[19] The Applicant addressed a letter to AMCU on 13 April 2023, setting out the process to be followed in verifying AMCU’s membership. The process envisaged two stages of verification, to be completed by 1 June 2023.

[20] Having received the AMCU membership forms, the Applicant initially went down the verification route, but on 1 June 2023, it wrote to AMCU, confirming that it was party to a CSA with NUM and advising of a change in tack on this basis:

‘3.3 In terms of the Closed Shop Agreement, all employees within the bargaining unit are required to become members of the NUM on confirmation of their employment. Therefore, virtually all the employees within the bargaining unit are members of the NUM by operation of the Closed Shop Agreement (including those that AMCU claims to have recruited).

3.4 Therefore, for as long as the Closed Shop Agreement remains in force, AMCU’s request for organisational rights in terms of section 21 of the LRA is subordinate to the Closed Shop Agreement.

…

4.1 In the light of the above, the company confirms that it is not in a position to grant AMCU organisational rights in terms of section 21 of the LRA during the tenure of the Closed Shop Agreement.’

[21] On 5 June 2023, AMCU referred an organisational rights dispute to the CCMA.

[22] AMCU’s case is that it referred the dispute to be granted organisational rights to the CCMA as a result of the Applicant’s refusal to conduct a verification process and to grant AMCU organisational rights, and because of NUM’s breach of section 26(15) and the Applicant’s breach of the CSA.

[23] The dispute was set down for conciliation on 4 August 2023, but the parties agreed to an extension of the conciliation period to 2 October 2023.

[24] AMCU’s case is that a petition to terminate the CSA, as provided for in section 26(15)(a) and (b) of the LRA, was sent to NUM on 24 May 2023. The NUM had to conduct a ballot of the employees covered by the CSA to determine whether the agreement should be terminated, if more than one-third of the employees covered by the agreement called for its termination and a period of three years had elapsed since the date on which the agreement commenced, or the last ballot was conducted. NUM is in breach of clause 5.6.1. of the CSA in that it was compelled to conduct a ballot and failed to do so. The Applicant is in breach of clause 5.4. of the CSA in that it failed to give NUM written notice to establish that it still had majority representation, after receiving the petition from AMCU members to terminate the CSA.

[25] The practical effect of a CSA, as the one in casu, is that NUM is the exclusive union, enjoying 100% membership. To the extent that AMCU claims to have 1 200 members, it can at best only establish that it has 1 200 dual members, as all employees of the Applicant, including the 1 200 AMCU members, are members of NUM, by operation of the CSA.

[26] AMCU conceded that it cannot obtain organisational rights at arbitration. This is so because our law does not recognise ‘dual’ union membership for the purpose of determining whether a union is a ‘majority’ union (sections 14 and 16 of the LRA), a ‘sufficiently representative’ union (section 11 of the LRA) or one that has a ‘substantial number of employees’ as its members (section 21(8C)(b) of the LRA).

[27] On 11 October 2023, and following a lengthy conciliation process, the CCMA issued a certificate of outcome. It reflects the dispute as concerning organisational rights and indicates that strike action may follow.

[28] On 16 October 2023, AMCU gave the company 48 hours’ notice of the commencement of a strike by AMCU members over organisational rights. The strike was due to commence at 06h00 on 18 October 2023. The Applicant subsequently approached this Court on an urgent basis for relief.

[29] The matter was heard on the afternoon of 17 October 2023, during the course of which AMCU consented to the strike being held in abeyance pending the court handing down judgment.

The urgent application

[30] The Applicant seeks an order to declare that the strike action which AMCU and the Third to Further Respondents (the employees) intend to embark on, is unprotected and to interdict and restrain them from participating and promoting such unprotected strike or conduct in contemplation of the strike.

[31] The Applicant raised two grounds to interdict the intended strike action as unprotected, which I will deal with in turn.

The wage agreement and peace clause

[32] The Applicant entered into wage negotiations with NUM, which culminated in the conclusion of a wage agreement between the parties on 6 October 2023. On 12 October 2023, they entered into a second wage agreement, which replaced the first agreement. The only difference between the two is the ‘commencement date’ – the first agreement defined it as being 1 January 2024, while the second agreement defines it as being the date of signature of the agreement. The wage agreement runs until 31 December

2026.

[33] The second wage agreement, like the first, contains a peace clause, which reads as follows:

‘10.1 The parties agree that NUM and/or the employees will not be permitted to make any demand for the increase of wages, benefits, any issue of mutual interest, including but not limited to organisational rights disputes, during the duration of this agreement; and

10.2 Will not be permitted to resort to any industrial action in support of such demand.’

[34] The Applicant’s case is that, by virtue of the CSA, all employees within the bargaining unit are members of NUM and as such, the second wage agreement entered into between the Applicant and NUM, for the period 1 October 2023 until 31 December 2026, is binding on them. As already alluded to, the said agreement contains a peace clause which prohibits any industrial action in support of any matter of mutual interest.

[35] Section 65(1)(a) renders unprotected a strike by persons who are “bound by a collective agreement that prohibits a strike… in respect of the issue in dispute”. Put differently, section 65(1)(a) prohibits strikes “in respect of disputes on issues that are the subject of a peace clause”.[7]

[36] The peace clause contained in the second wage agreement expressly prohibits a strike over organisational rights and as such, the Applicant’s case is that strike is unprotected by way of operation of the peace clause.

[37] In relation to the peace clause ground for an interdict, ACMU contends that the wage agreement and thus the peace clause is invalid because the Applicant breached clause 5.4 of the CSA after receiving AMCU’s 1200 membership forms and NUM breached clause 5.6 of the CSA after receiving the petition. As of 24 May 2023, NUM lacked the authority to conclude the second wage agreement and to agree to a peace clause in 10.1, that would bind AMCU not to strike.

[38] AMCU stated that it intends to bring an application to set aside the second wage agreement and to declare it invalid because it was concluded when NUM was not the majority trade union and despite the aforesaid breaches of the CSA.

[39] AMCU’s intended application is not an issue for this Court to decide.

[40] Ms Swartz for AMCU submitted that, as a result of the various breaches of the CSA, NUM’s disregard of section 26(15) and the provision of section 25(16) of the LRA, the CSA was terminated by the petition, as contemplated in section 26(16) and that the second wage agreement is therefore unenforceable as the authority of NUM to bind its’ members (including AMCU members) is lacking. She further submitted that section 26(16) does not require that a CSA must be first set aside before it is terminated.

The CSA terminates by operation of law. Accordingly, the petition to terminate the CSA which was sent by AMCU members, being over

one-third of the applicant’s employees, terminated the CSA.

[41] The argument so advanced is not a proper interpretation of section 26(16) of the LRA. Section 26(16) cannot be read in isolation but should be read and understood with section 26(15), which provides for a ballot. Section 26(16) refers to the employees who voted in the ballot and 26 (17) provides for how the ballot is to be conducted. The petition calling for the termination of a CSA is not a ballot or a vote, but merely the trigger for a ballot to be held, to determine whether the CSA should be terminated. A proper interpretation of section 26 (16) is that a CSA terminates as soon as the majority so votes. If there is no compliance with the terms of the CSA or the provisions of section 26(15) of the LRA, AMCU’s remedy is to approach this Court for relief.

[42] Section 65(1)(a) renders a strike by persons who are bound by a collective agreement that prohibits a strike in respect of the issue in dispute, unprotected. The prohibition applies to all employees who are subject to a collective agreement, regardless of whether they belong to the union(s) that signed it.

[43] The peace clause contained in the second wage agreement expressly prohibits a strike over organisational rights. The wage agreement was concluded between the Applicant and NUM, within the sphere of an existing CSA. The CSA has not been terminated in accordance with the provisions of section 26(16) of the LRA and has not been declared invalid by a court on the strength of an application to that effect by AMCU.

[44] The fact is that until the CSA terminates and the employees properly resign from NUM, NUM was entitled to negotiate on behalf of all employees in the bargaining unit (including its own members and those employees who hold dual membership of NUM and AMCU) and enter into a wage agreement that is binding on all of them.

[45] In the context of there being a CSA, even if the employees joined AMCU, they remained members of NUM on the basis of the CSA and they are bound by the collective agreements so concluded.

[46] AMCU also contends, in relation to the peace clause ground for an interdict, that the peace clause was added ex post facto to prevent a strike and is thus not binding. AMCU’s case is that the Applicant and NUM concluded the first wage agreement on 6 October 2023. The certificate of outcome was issued on 11 October 2023 and two days later, the Applicant and NUM concluded a second wage agreement which incorporated clause 10, which prohibits strike action for organisational rights. This was intentionally done to prohibit AMCU from proceeding with its lawful strike and AMCU’s case is that the second wage agreement was concluded solely for purposes of incorporating clause 10.1 into the agreement in order to prevent AMCU from striking.

[47] Considering the facts and documents placed before this Court, it is evident that AMCU is wrong on the facts. The peace clause (clauses 10.1 and 10.2) appeared in both the first and second wage agreements. The reason for the second agreement was to accurately record the parties’ agreement on the commencement date and that is all that was amended in the second wage agreement. The second wage agreement was not concluded solely for the purposes of incorporating clause 10.1 into the agreement to prevent AMCU from striking.

[48] In any event, the issue taken by AMCU that because the peace clause was added ex post facto to prevent a strike, it is not binding, has no merit. The law allows parties to enter into agreements to prevent strike action by non-party unions and to do so ex post facto the conclusion of a wage agreement.

[49] In Glencore Operations SA (Pty) Ltd and others v National Union of Metalworkers of SA[8] (Glencore), the Court was faced with a scenario where the employer and a union coalition concluded a wage agreement and a section 23(1)(d) extension, which applied to NUMSA members. The wage agreement however did not contain a peace clause and NUMSA subsequently referred a dispute of mutual interest to the CCMA. Faced with the threat of a looming strike, the parties amended the wage agreement through the inclusion of a peace clause. When NUMSA issued a strike notice, the employer sought an interdict, with NUMSA’s opposition being that the company could not deprive its members of their vested right to strike by amending the wage agreement ex post facto. This court (per Moshoana J) found as follows:[9]

‘[17] …In argument though, one of the two points pursued was that the peace clause was concluded ex post facto. Meaning that, when the peace clause was added, the respondent had already referred a dispute.

[18] This submission seems to suggest that by a mere referral strike action gains legitimacy and is then immune from any form of limitation. That cannot be the case. As I have already stated above, the right to strike is an individual right. In order for a strike to be protected, it must satisfy both the procedural and substantive requirements. The issue whether a person is entitled to strike in the face of a peace obligation is a substantive requirement. Therefore, engaging in strike action is not similar to running a relay. It does not mean that once a runner has left the starting line, then the relay run is in process. The fact that a dispute that is later to be prohibited by a peace clause is referred does not legitimise the strike action. The fact that a peace obligation was entered into after the referral is neither here nor there. It is a red herring.

[19] Even in instances where a strike had commenced and it becomes apparent that the strike contravenes a peace obligation, this court is empowered to place an [injunction]. Therefore, what renders this strike unprotected is not the procedural requirements but the substantive requirements. To my mind, nothing turns on the fact that the collective agreement was entered into when the procedural requirements were being complied with. It may well be so that the intention of the applicants was to thwart the possible strike by the respondent and its members. To my mind, doing so is not unlawful and is actually part of the power play. It must be remembered that in the peace obligation clause, the applicants equally limit their power to flex their muscles, as in locking out. Similarly, the majority unions equally clipped their wings to call their members for a strike. As Van Niekerk J aptly puts it, the majoritarian principles underlies s 23(1)(d) and it promotes orderly collective bargaining with a legitimate purpose of advancing labour peace.’

[50] It is evident from the aforesaid authority that at the level of principle there is nothing wrong or unlawful in parties agreeing on an extension or amendment to a collective agreement ex post facto agreeing on the wage agreement.

[51] AMCU’s contention that it is de facto a majority union and therefore that “clause 3.2 of the second wage agreement does not extend to AMCU members”, is without merit. Clause 3.2 provides that “this agreement shall apply to and binds each of the parties, members of NUM and those persons who may become members of NUM after the conclusion of the agreement…”[10] The clause echoes sections 23(1)(a) and (b) of the LRA. As a matter of fact, AMCU members were members of NUM at the time that the agreement was concluded and are thus bound by it.

[52] In short: until the CSA terminates and the employees properly resign from NUM, NUM was entitled to negotiate on behalf of all employees and enter into a wage agreement with the Applicant which is binding on them. At all material times during this process, all employees (including ACMU’s alleged members) were members of NUM by operation of the CSA.

[53] As such, the employees are bound by the peace clause in the second wage agreement and the provisions of section 65(1)(a) apply, which renders the strike unprotected by way of operation of the peace clause.

[54] The strike is accordingly unprotected by way of operation of the peace clause.

Section 65(1)(c) in the alternative

[55] The Applicant’s alternative ground for contending that the strike will be unprotected is that the strike is prohibited in terms of section 65(1)(c) of the LRA because the actual dispute giving rise to the strike, is AMCU’s opposition to the CSA. The Applicant’s case is that AMCU’s remedy lies in section 26(10) to (14) of the LRA which entitles AMCU to apply to become a party to the CSA. If it is admitted, employees will then have a choice of unions to join (NUM or AMCU), which will then

unlock the impediment to the grant of organisational rights to AMCU. If for some reason AMCU is not admitted as a party, it then has the right to refer the dispute to the Labour Court for adjudication. The threatened strike is thus hit by the section 65(1)(c) limitation, in that “the issue in dispute is one that a party has the right to refer to… the Labour Court in terms of this Act”.

[56] In view of the conclusion to which I have come on the first ground for which the Applicant contends, it is not necessary for the Court to make any decision in respect of the second.

Conclusion

[57] The Applicant seeks final relief.

[58] An application for a final interdict must be satisfied on three essential requisites, namely –

a. a clear right of the party asserting it;

b. an injury actually committed or reasonably apprehended; and

c. the absence of any other satisfactory remedy that may have been available to the party seeking the interdict.[11]

[59] Considering the facts, I am satisfied that the Applicant has established a clear right to the relief it seeks, that it will suffer severe harm if the unprotected strike action is not interdicted and that has no other satisfactory remedy available.

Costs

[60] This Court has a wide discretion in respect of costs, considering the requirements of law and fairness. I have considered the fact that the issues before me were not clear cut and I am of the view that this is a case where the interests of justice and fairness will be best served by making no order as to costs.

[61] In the premises, I make the following order:

Order

1. The provisions of the Rules of this Court relating to times and manner of service referred to therein are dispensed with and the matter is dealt with as one of urgency in terms of Rule 8 of this Court’s Rules.

2. The Applicant’s non-compliance with section 68(2) of the LRA is hereby condoned.

3. The strike, which the First and Third to Further Respondents intend to embark on and which was scheduled to commence from Wednesday, 18 October 2023, at 06h00 is unprotected.

4. The First and Third to Further Respondents are interdicted and restrained from participating in and promoting such unprotected strike or engaging in any conduct in contemplation of the strike.

5. The First and Third to Further Respondents are interdicted and restrained from participating in any unlawful conduct at the Applicant’s

premises, including at any premises owned, controlled, maintained or operated by the Applicant.

6. The First Respondent is directed to do all such things and to take all such steps as necessary to ensure that the provisions of paragraphs 4 and 5 are complied with by the Third to Further Respondents.

7. The First Respondent is interdicted and restrained from calling on the Third to Further Respondents and/or any other employee of the Applicant to participate in and support such unprotected strike or conduct in contemplation of the strike.

8. The First Respondent must:

a. communicate to the Third to Further Respondents that the strike is unprotected; and

b. request the Third to Further Respondents to not participate in the strike.

9. The service of this Order shall be effected on the Respondents as follows:

a. On the First Respondent by:

i. fax to fax number: [...]

ii. emailing a copy to:

1. Luvo Ntshwanti - [...]

2. Jeffrey Chauke - [...]; and

3. Tladi Mokwena - [...]

b. On the Second Respondent by:

i. fax to the fax number: [...]

1. NUM Branch Secretary -[...]

2. NUM Branch Chairman - [...]; and

3. Victor Ngwane - [...]

c. On the Third to Further Respondents by:

i. displaying a copy thereof on the dedicated notice boards accessible by the Third to Further Respondents at the Applicant’s premises situated at […] ; and

ii. distributing copies thereof to any Third to Further Respondents who request such a copy.

10. There is no order as to costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate A Myburgh SC

Instructed by:

ENS Inc Attorneys

For the First and Third Respondents:

Advocate S Swartz

Larry Dave Attorneys

[1] Act 66 of 1995, as amended.

[2] D du Toit, D Bosch, D Woolfrey et al, “Labour Relations Law – A Comprehensive Guide”, 7th ed, (LexisNexis) (Du Toit) at 3.6.

[3] [2019] ZALAC 63; (2020) 41 ILJ 419 (LAC) at para 7.

[4] [2021] ZALCJHB 235; (2022) 43 ILJ 426 (LC) at para 26.

[5] MH Cheadle, DM Davis, NRL Haysom “South African Constitutional Law – The Bill of Rights” (LexisNexis) (Cheadle) at 18-20.

[6] Du Toit, Labour Relations Law – A Comprehensive Guide ibid.

[7] Cheadle at 18-36. The author goes on to mention that this is a universal restriction on the right to strike upheld by ILO Committees.

[8] [2018] ZALCJHB 434; (2018) 39 ILJ 2305 (LC).

[9] Glencore at paras 17 - 19.

[10] FA11 p 91, clause 3.2.

[11] Setlogelo v Setlogelo 1914 AD 221; Minister of Health v Drums and Pails Reconditioning CC t/a Village Drums and Pails 1997 (3) SA867 (N) at 872 C.