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Article 3/2024

LabourEdge

What are the requirements to be met to obtain an interdict against unlawful conduct during a protected strike where the employees against whom the employer wants to obtain this interdict did not personally commit the unlawful conduct – i e did not personally throw the stone, burn the tyre, interfere with scab labour, prevent trucks from offloading, etc?

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The requirements for a final interdict are well settled, namely:

  • a clear right
  • injury actually committed or reasonably apprehended
  • the absence of an alternative remedy (Setlogelo v Setlogelo 1914 AD 221)

Taking the above into account, it is quite clear why an employer can obtain a final interdict against an employee who actually committed the unlawful conduct – however, the problems occur when the employee did not personally commit the unlawful conduct but was present at the scene of the unlawful conduct or, alternatively, was part of the union that went out on strike.

The constitutional court, in Commercial Stevedoring Agricultural and Allied Workers’ Union v Oak Valley Estates (2022) 33 SALLR 49 (CC), formulated the following two different approaches to be applied in such environment:

 

  • Scenario 1

 

This scenario covers the factual circumstance where the unlawful conduct is ongoing, widespread and manifest – an employer will be able to obtain a final interdict against those employees who, in such circumstance, do not disassociate themselves from the unlawful conduct (this entails that, in such scenario, there is a duty on such bystanders to disassociate themselves from the unlawful conduct)

 

  • Scenario 2

 

This scenario entails the factual scene where the unlawful conduct is isolated and sporadic and the industrial action is substantially peaceful – if an employer wishes to obtain a final interdict, it has to prove (by providing direct evidence or circumstantial evidence) that the bystander wished to associate himself/herself with the unlawful conduct

From the above, it is apparent that the mere participation in a strike is not sufficient to establish the required link between an employee and the actual or threatened injury and, furthermore, that innocent bystanders are not legally caught up in the web of unlawful conduct unless they fall within the aforesaid two scenarios.  Likewise, mere membership of the union that called for the strike is not sufficient to establish the required link between the employee and the actual or threatened injury.

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?