Strike violence too easily tolerated and must be outlawed

The recent strike at Sibanye once again highlighted the sorry state of SA’s industrial relations. The strike lasted about five months and, disappointingly, was marred by more than 100 acts of violence, some of them grievous in nature.

Written By of Cowan-Harper-Madikizela Attorneys

The violence was perpetrated by people seeking to apply undue pressure on Sibanye in the hope that the company would capitulate to the union’s demands. It was reported that 10 people died and almost 100 homes and vehicles were torched.

Our law reports are replete with similar stories of strikes involving violence. The Labour Court has often lamented the use of violence by strikers and has gone so far as to question whether a strike continues to serve a legitimate purpose when it has descended into chaos. The court has indicated its willingness to declare strikes unprotected when violence occurs, but only when it has reached egregious levels.

It is worrying that the court seems to have resigned itself to the fact that it can only intervene in those limited circumstances, a conclusion that suggests some violence should not only be expected during a strike but that it should be accepted as the norm.

The Constitutional Court has never made any definitive pronouncements on strike violence. This is particularly curious given that the court has on many occasions dealt with other employment-related issues such as the right to strike, section 197 transfers of undertakings, affirmative action, racism, retrenchments and even mundane issues such as the prescription of CCMA arbitration awards. How an issue as prevalent and serious as strike violence has managed to escape the judicial attention of our highest court for so long is more than a little perplexing.

Strike violence appears to be a topic that is anathema to our legislators and sends them into a state of paralysis. It is unconscionable that the legislature has failed to intervene decisively to protect the lives and property of those who become collateral damage in disputes between employees and their employers. The failure to effectively regulate this pressing issue is particularly puzzling when one considers the relatively swift steps taken to severely restrict the use of labour brokers and introduce a national minimum wage.

The Labour Relations Act, now about 24 years old, is woefully inadequate in dealing with strike violence. The aftermath of the Marikana tragedy provided the collectives of business and labour with an opportunity to look each other squarely in the eye and admit that something serious needed to be done to deal with strike violence. However, the result of those engagements was disappointing, producing a set of “soft” interventions, including an “accord” and yet another code of good practice, neither of which has any binding or legal effect on either employers or unions, and appears to have had little effect on tempering the levels or frequencies of violence.

Similarly, the section 150A process, which introduced a formal advisory arbitration process to deal with protracted and violent strikes to the act in January, has yet to be put into operation. It seems that Nedlac has yet to establish a panel of advisory arbitrators, and its lack of urgency in this regard is lamentable. While the amendments to the picketing provisions in section 69 of the act are commendable, neither these nor the other amendments provide any tangible comfort to employers, many of whom are often required to negotiate with unions amid a climate of violence, intimidation and disorderly conduct.

A number of measures should be implemented to deal with strike violence. One of them could provide for the immediate suspension of the right to strike in circumstances where even a single incident of violence occurs. Notwithstanding the historical significance of the right to strike, there is nothing magical about it and there is no reason why the right to strike should trump other constitutional rights, especially the rights to life, property, freedom, and security of the person.

Another proposal is the introduction of hefty fines for unions (and their officials) in circumstances where strikes descend into violence. Such liability should arise on a strict basis and would go some way towards ensuring that unions effectively manage and monitor the strikes called by them. Such a measure would also prevent a union from being able to distance itself from the violence that occurs during a strike — something that happens far too often.

The rule established by our courts that a union should not be required to pay the legal costs of an employer because there is a so-called “ongoing relationship” between the union and an employer, also needs to be revisited. This rule has led to rampant abuse by unions, in effect emboldening them to engage with impunity in what would otherwise be termed irrational, unfair or even unlawful conduct. The damage caused to a relationship by such conduct significantly outweighs any award of legal costs. Indeed, costs orders bring a sense of justice and fairness to the equation and thus may have a salutary effect on the relationship.

The act makes it extremely easy to engage in a protected strike and therefore noncompliance with its provisions should be strictly dealt with by the Labour Court. Strikes declared unprotected by the court should, unless compelling circumstances exist, result in the costs being paid by the union or employees involved.

Such measures are not “union bashing”. Holding people or institutions accountable for their actions, including unions and their members, is something that should be encouraged and promoted in our society. Unions should not be allowed to escape censure by the courts and regulation from the legislature simply because the right to strike is constitutionally protected.

In 2011 the Supreme Court of Appeal, dealing with a protest march that had descended into anarchy, remarked that “in the past, the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob”. The fact that the mob has assembled at the workplace does not confer additional protections or special status on it.

The act, in its current form, does little to deal with the tyranny of the mob. It is time to leave behind the ideology and romantic ideas that underpinned the strike provisions of the act and deal decisively with violent strikes and those who engage in them.

Published in Business Day on 31 May 2019.

Neil Coetzer

Neil Coetzer
Head of Employment

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