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

Often employment contracts contain a clause to the effect that the agreement is the sole record of the terms existing between the parties and that any variation or amendment thereof will only be valid if reduced to writing and signed by both parties.

When appearing in the labour court in motion proceedings and there are material disputes of fact, should the matter be referred for oral evidence?

Motion proceedings (including applications in terms of rule 31 of the CCMA rules) are not designed to resolve disputes of fact, but indeed disputes of law.