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Article 17/2023

In the scenario where there is a lawful assembly, demonstration, picket, the presentation of a petition or strike action but unlawful conduct occurs, on what basis can an interdict be obtained to restrain such conduct against bystanders who do not participate in the actual unlawful conduct – simply put, is mere participation in such lawful action, such as strike action, sufficient to establish a link?

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The constitutional court, in Commercial Stevedoring Agriculture and Allied Workers’ Union v Oakvalley Estates (2022) 33 SALLR 49 (CC), adopted the following approach to the aforesaid scenario:

  • the requirements for a final interdict are well established and entails the existence of a clear right, an injury actually committed or reasonably apprehended and the absence of an alternative remedy (Setlogelo v Setlogelo 1914 AD 221)
  • when considering granting an interdict against the aforesaid bystanders, in line with the said requirements, where they have not actually committed the wrong, a reasonable apprehension of injury has to be established – the test is that, if the evidence is insufficient to establish any link between the employee and the actual or threatened injury, the required reasonable apprehension of an injury is not established (Minister of Law and Order v Nordien 1987 (2) SA 894 (A))
  • mere participation in a strike is not sufficient to establish such link – if it was so, innocent bystanders would be caught in the web and it is not good enough to say that they would subsequently escape liability in a negative contempt finding
  • whether or not the required link exists is a factual question and the constitutional court identified the following three scenarios:
    • if the unlawful conduct is ongoing, widespread and manifest, the link would be established if
      the employee does not disassociate himself from same
    • if the strike, assembly, etc, is substantially peaceful and isolated and sporadic unlawful actions occur – the link would be established if association is proved
    • obviously, those actually participating in the unlawful conduct will be covered by an interdict, seeing that the required link has been established
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?