The picketing rules had been established by the CCMA more than a year prior to the commencement of the strike. Notwithstanding this, and unsurprisingly, the strike was marred by acts of violence, intimidation and other unlawful conduct. Three days after the strike commenced, the employer approached the Labour Court on an urgent basis to obtain an Order, inter alia, compelling the Union and its members to comply with the picketing rules.

The Order was handed down by the Labour Court on 16 October 2020, by agreement between the employer and the Union. The Order required the Union and its members to comply with the picketing rules and interdicted them from engaging in any unlawful and violent conduct. It also recorded that the Union would assist the employer in identifying the persons who had contravened the picketing rules.

Following further breaches of the picketing rules and the Court Order, the employer again approached the Labour Court seeking a number of Orders. At the hearing, it narrowed its relief sought to a suspension of the picketing rules.

The Court noted that there were acts of violence and intimidation present in the circumstances and that the picketing rules were being ignored by the Union and its members. It found that section 69(12) of the Labour Relations Act 66 of 1995, as amended (“the LRA”) enjoined the Labour Court to intervene and grant urgent relief, as it had done in the case of Dis-Chem Pharmacies Ltd v Malema & Others (2019) 40 ILJ 855 (LC).

The Court noted, however, that there were differences in the facts of Dis-Chem and the present case, particularly insofar as the functionality of the picketing rules were concerned.

The Court found that all the facts and circumstances must be taken into account before deciding whether a complete or partial suspension of the picketing rules or a variation of those rules, is required. It found that an order suspending picketing rules would not be easily granted, since a balancing act had to be struck between the competing interests of the employees’ right to strike, the employer’s right to continue its business unhindered, the interests of other employees, customers and clients and a determination of whether the rules still served their purpose.

The Court found that an employer seeking to suspend the picketing rules must demonstrate that such measures are necessary, that the current rules are being flouted or are not achieving the primary objective of peaceful demonstration. The Court emphasised that this is a high threshold to meet.

In this case, the employer contended that following the granting of the interdict, acts of violence, intimidation and unlawfulness continued. There were also other instances of unlawful conduct in the surrounding communities where shop owners, customers and clients had been harassed or threatened.

The Union denied that its members engaged in any unlawful conduct. The Deputy General Secretary of the Union contended that after the Order was obtained he personally addressed employees at the employer’s premises. The Union also contended that the incidents in question occurred away from the employer’s workplace and away from the designated picketing areas.

On the evidence before it, the Court found that most of the incidents complained of were perpetrated by unknown individuals and took place in the communities in which the employees reside. It also found that many of the incidents were unrelated to the strike since they involved warring taxi owners operating in the area. In summary, the Court found that there was no discernible evidence indicating that the picketing rules had become dysfunctional on account of unlawful conduct taking place in the demarcated areas.

The Court pointed out that the picketing rules were only applicable as between the Union and the employer and what occurred in the surrounding communities was an issue for the criminal justice system. It was at pains to point out that an alleged breach of picketing rules cannot necessarily be extended to incidents which take place in communities after hours unless there is evidence to suggest that ‘the acts of criminality were planned and executed within the four corners of those Rules’.

As the employer had approached the Labour Court on an urgent basis, it was required to show that it had no alternative remedy. The Union accordingly raised the point that the employer should have made use of contempt proceedings to achieve the result that it sought. The Court agreed with this argument.

The Court pointed out that the Order of the Labour Court made provision for the Union to assist the employer in identifying the persons who had failed to adhere to the picketing rules. The employer had however failed to approach the Union to ask for assistance, other than to send a letter to the Union raising concerns about the continued acts of unlawfulness.

The Court found that the employer should have instituted contempt proceedings against the Union if it believed that its members had not complied with the Order of the Labour Court. The Court held that it could have done so on an urgent basis and that the prospect of a ‘heavy prison sentence or financial penalty’ would be more effective than a suspension of the picketing rules. In the circumstances, the employer’s application was dismissed.

The judgment is sure to be controversial. The judgment appears to be at odds with the Labour Court’s earlier judgment in Dis-Chem, where it found that a right to picket could be suspended or forfeited where ‘breaches of the picketing rules and violence, unlawful conduct and intimidation are persisted with despite numerous attempts to secure compliance’ (para 29 of Dis-Chem).

In this judgment, the Court seems to have advocated an approach which focuses on whether the breaches of the picketing rules affected their functionality, while in Dis-Chem the Court made a broader determination as to whether the objective of peaceful protest had been undermined by the breaches.

The judgment in effect declares violence, intimidation and unlawful conduct which occurs away from designated picketing areas to fall outside the scope of any remedy available to an employer in terms of section 69(12). It also suggests that an employer is better off utilizing contempt proceedings to deal with non-compliance with an Order of Court, notwithstanding the fact that there are continuing breaches of the picketing rules.

Strike violence is regrettably very much part of our industrial relations culture and the amendments to section 69 were a long-overdue attempt to address it, at least to some extent. This judgment, despite some of the remonstrations contained herein, may be sending the wrong message.

Will we ever see an amendment to section 65 of the LRA which imposes a substantive limitation on violent strikes?