Article 63/2021

Labour Edge

Is it a requirement that a strike must actually start before a lockout can be lawfully implemented?


In Technikon SA v National Union of Technikon Employees of SA (2001) 22 ILJ 427 (LAC), at paragraph [29], the following was stated:

‘S64 also does not say that once employees have given notice to strike or once they have begun with their strike before the employer can either give its notice to lockout or can institute its lockout, the employer can no longer exercise its recourse to lockout under s64(1) even if all the requirements have been met. Equally, there is no provision to the effect that, if the employer has given the notice to lockout first or has begun with its lockout before the employees can begin with their strike or can give their notice to strike, the employees lose their right to strike. This, therefore, means that a lockout may commence before, simultaneously with, or, after, a strike has commenced. It also means that a lockout and a strike can run concurrently between the same parties. What this would mean in practice is that the strikers would be excluded from the premises of the employer.’

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?