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 [943]:
“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.
Neasa’s response to the ‘threats’ by Cosatu (Western Cape):
The National Employers’ Association of South Africa (NEASA) is adamant that the decision by its members to engage in a lock-out of workers that participated in the recent Metal Industry strike will stand despite threats from both NUMSA and COSATU. Yesterday COSATU in the Western Cape threatened to close down companies who are participating in the lock-out. The threat by COSATU Western Cape came on the same day that NUMSA threatened NEASA with court action if NEASA does not suspend the current lock-out against NUMSA and four other unions. NEASA maintains that the lock-out is legal and that right to a lock-out enjoys the same constitutional protection as the right to strike.
‘Companies in the Metal Industry have just endured a violent four week strike, where employees were prevented, through extreme forms of violence and intimidation, to execute their right to work. There were instances where employees were dragged out of offices and assaulted; where business owners were threatened with their lives, businesses were forced to close their doors, properties were damaged and interdicts obtained to curb the violence and destruction were treated with contempt. Employers were forced to look on while these events unfolded, at times without police protection,’ says NEASA Chief Executive, Gerhard Papenfus.
Now that NUMSA is faced with similar action, but without their members being threatened with their lives, threats of assault or without their property being destroyed, NUMSA wants to mobilise against these businesses. They threaten to close down businesses who execute their constitutional right.
‘NUMSA and COSATU Western Cape clearly stand for a one-sided form of democracy. They are very quick to claim the benefits of their version of democracy and are very quick to point out any so-called undemocratic behaviour, but they are clearly not interested to illustrate democratic principles when the shoe is on the other foot. When the situation does not suit them, they utilise the tyranny of numbers. In all of this they, however, show their true colours,’ says Papenfus.
What they are illustrating is the kind of South Africa they stand for; it is a South Africa where the views of those who do not agree with them will be suppressed.
‘Democracy can only be legislated to a degree; but the real test comes when things happen which you cannot control. It then shows whether you really believe in freedom of expression and constitutional liberty, whether it comes from the heart or whether it is only something you’ll use when it is convenient to you,’ Papenfus said.
The current differences between NEASA and NUMSA will not be resolved through threats and legal action, but through the appropriate channels – something NEASA was denied during the most crucial portion of the recent round of wage negotiations.
THE NATIONAL EMPLOYERS ASSOCIATION OF SOUTH AFRICA – NUMSA WITHDRAWS ITS COURT APPLICATION AGAINST NEASA
05 August 2014
On Monday, 4 August, the National Union of Metal Workers of South Africa (NUMSA)lodged an urgent application in the Labour Court to declare the lock-out by members of the National Employers Association of South Africa (NEASA) invalid.
The application was supposed to be heard this morning, 5 August, however a short while ago NUMSA announced that it was to withdrew its urgent application. Costs for the application was awarded against NUMSA.
Last week NEASA announced that its members would engage in a lock-out of union members who participated in the recent Metal Industry strike. The reason for the lock-out is because NEASA’s demands have not been considered during the recent industry negotiations. NEASA has therefore also refused to sign the recent settlement agreement that was reached between SEIFSA, NUMSA and five other unions. The lock-out will continue until NEASA’s demands have been sufficiently dealt with.
NEASA represents 3000 members in the Metal Industry alone, the majority of them are small and medium enterprises. These members represent approximately 70 000 workers.
For more information:
Sya van der Walt-Potgieter
Media Liaison
(t) 012 622 8971 | (f) 086 568 8775
[email protected]