Article 52/2021

Labour Edge

How did the labour court recently, in Mahle Behr SA (Pty) Ltd v National Union of Metalworkers of SA and Others; Foskor (Pty) Ltd v National Union of Metalworkers of SA and Others (2019) 30 SALLR 173 (LC), deal with the pre-strike ballot requirement?


  1. the respondents’ second argument was premised on what they suggested was an issue related to the interpretation of the section. The respondents suggested that the section should be interpreted to mean that the transitional provisions would only apply after the registrar had issued the directive and before there was compliance with the directive;
  2. in interpreting statutes, the court is required to apply the accepted canons of interpretation. In this matter, the labour court was of the view that the provisions of s19 were clear and unambiguous and the court was obliged to give effect thereto;
  3. the purpose of the legislation is clear in that its purpose, inter alia, is to provide that, before a union may engage in a strike, it should conduct a secret ballot of its members. In addition to this provision, and to regulate the interim position, the transitional provisions require the holding of a secret ballot by a union (and employers’ organisation in respect of a lockout) prior to engaging in a strike. The requirement is peremptory and applies only to registered trade unions that do not include in their constitution the requirement of a ballot;
  4. to interpret the section as not applying to the respondents negates any suggestion that the transitional provisions will apply in the interim pending compliance; and
  5. that being so, the labour court was satisfied that the transitional requirements applied to those unions whose constitutions do not provide for ‘recorded and secret ballots’ and that, in the interim, prior to complying with the requirements relating to a secret ballot, they ‘must conduct a secret ballot of members’ before engaging in a strike.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.