According to a press statement released by Cosatu (Western Cape) yesterday the members of Neasa who lock out their employees to resolve the current wage dispute will see ‘their companies closed down by Cosatu in the Western Cape’. Cosatu has also threatened to ‘isolate and call for boycotts of those companies in the Western Cape who dare to lock out’ their members and Cosatu ‘will focus on the Directors’ personal assets and connections as well’. It seems Cosatu also intends calling for an international boycott of the products of the Neasa members who lock out their employees. But when does such action become unlawful ?
Some 15 years ago an article, entitled “Boycotts: The Limits of Lawfulness” written by JJ Gauntlett SC and DF Smuts SC, appeared in the Industrial Law Journal – see (2009) 11 ILJ 937. The authors suggested there was no bright line between lawful and unlawful boycotts and that and judges would have to decide each case depending on the facts. Their conclusion was :
“In summary, our submissions are:
- It is not, per se, an unlawful and wrongful act at common law to call upon third parties to suspend or terminate their contractual relationships with another, in order to induce the latter to abandon a position he holds.
- In any instance in which a court is enjoined to restrain boycott action, it must accordingly determine whether, upon the facts of that matter, the interference with contractual relations gives rise to unlawfulness.
- The point of departure in this regard must be that the exercise of fundamental rights of expression, association and (in a measure) assembly involved in calling for a boycott in the context of collective bargaining is, in principle, lawful.
- The question is then whether the exercise of these rights in a particular instance has been shown to ‘transgress the norms of the community’, to offend its sense of boni mores, or to be generally ‘unreasonable’.
- The burden of proof in establishing this should in principle lie upon the party seeking to restrain the boycott action.”
Another article concerning boycotts was written by JR Midgley “Boycotts and similar action: a comparison of German and South African law” (2002) 119 SALJ 352. Apart from these two journal articles it seems that there are no reported cases in South Africa, so it is difficult to predict how our courts will view the type of coercive collective action planned by Cosatu, if any application is made to the high court to interdict such action.