In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?
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- The requirements to be met to obtain interdictory relief against unlawful conduct during a lawful assembly, demonstration, picket, strike, etc, where there is indeed unlawful conduct, such as blocking roads, damage to the property of the employer, etc, were dealt with by the constitutional court, in Commercial Stevedoring Agricultural and Allied Workers Union v Oak Valley Estates (2022) 33 SALLR 49 (CC) (Oak Valley).
- In respect of the requirements of a final interdict, with reference to, inter alia, Setlogelo v Setlogelo 1914 AD 221, the constitutional court identified the following requirements:
- there must be a clear right
- an injury must actually have been committed or reasonably apprehended
- there must be no alternative remedy
- With reference to, inter alia, Minister of Law and Order v Nordien 1987 (2) SA 894 (A), in respect of the requirement of a reasonable apprehension of injury, the constitutional court, in Oak Valley, stated the following: if evidence is insufficient to establish any link between the employees sought to be covered by the interdict and the actual or threatened injury, a reasonable apprehension of injury is not established.
- In answering the question as to whether or not the mere participation in a lawful assembly, demonstration, picket, strike, etc, without participation in the lawful conduct, is sufficient to establish the required link, the constitutional court, in Oak Valley, held that, if such conduct is sufficient to establish such link, innocent bystanders will be caught in the web of unlawful conduct and it is not good enough to subsequently escape such web in a negative contempt finding.
- In order to determine whether or not such sufficient link exists, the following three factual scenarios were identified in Oak Valley:
- first scenario: where the misconduct is ongoing, widespread and manifest – the link is established if the relevant employee does not disassociate himself/ herself with such unlawful conduct (with reference to the previous two articles (Article 34/2026 and Article 35/2026), note that this principle is not applicable in the common purpose misconduct environment: see, in this regard, NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC))
- second scenario: the lawful strike is substantially peaceful but there are isolated and sporadic unlawful actions – the required link is only established if, indeed, association has been proven
- third scenario: the employer is able to identify specific employees who have participated in the unlawful conduct – then, obviously, the required link has been established
- An analysis of the specific factual matrix will thus determine the applicable test to be complied with during an interdict application evaluation.
