Csaawu v Oak Valley Estates (Pty Ltd

Interdicting unlawful conduct by workers being persons ‘doing work for’ the employer but ‘not working for’ the employer and as such not ’employees’ in the strict sense of the word, but participating in what was alleged to be unlawful conduct and intimidation during a protected strike and it will be interesting to listen to the arguments today.

Essence

Constitutional court hearing an appeal today concerning interdicting unlawful conduct by workers but not necessarily employees.

Decision

Report

Order:

Quote

Judges

Full court

Heard:       31 August 2021
Delivered: to follow

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2021) LRA 68(1)

Van Niekerk & Smit et al [email protected] 5ed (LexisNexis 2019) at

Myburgh & Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Garbers The New Essential Labour Law Handbook 7th ed (MACE 2019) at

Cheadle et al Strikes and the Law (LexisNexis 2017) at 

Reasons

Trade union submission on appeal

“The applicants do not dispute that certain unlawful conduct took place but maintain that the conduct was not attributed to them. They say that the real question in this matter is not whether the conduct complained of occurred and was unlawful – it is whether that conduct can rationally be linked to the parties against whom the interdict was ultimately granted. Absent a “rational factual connection” drawn between these incidents and the applicants, members of the public at large could just as easily have been responsible.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

To follow when judgment handed down.

Court summary

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 31 August 2021 at 10h00, the Constitutional Court will hear an application for leave to appeal against the judgment and order of the Labour Appeal Court which partially upheld an appeal against the order of the Labour Court.

The first applicant is the Commercial Stevedoring Agricultural and Allied Workers’ Union (CSAAWU), a trade union that organises farm workers in the Western Cape. The first respondent is Oak Valley Estates (Pty) Ltd (Oak Valley) and the second respondent is Boland Labour (Pty) Ltd (Boland Labour), a labour broker that employs workers who have seasonal employment on Oak Valley’s farm (collectively, the respondents). The second to 174th applicants are 173 of the 364 Oak Valley employees that participated in a lawful strike action intended to force the respondents to abandon certain allegedly unfair labour practices.

On 6 May 2019, the 364 employees commenced lawful strike action. It is common cause that the strike triggered unlawful intimidation, damage to property, and unlawful interference with Oak Valley’s business operations and that there were breaches of the Picketing Rules determined by the Commission for Conciliation, Mediation and Arbitration (CCMA).

This caused the respondents to approach the Labour Court to obtain a rule nisi interdict against CSAAWU and each of the 364 employees who had participated in the strike (the Individual Respondents), together with a group of unnamed persons who the respondents said were “people who associated themselves with the Individual Respondents in the criminal and unlawful conduct” (the Unidentifiable Respondents).

On 20 May 2019, the Labour Court issued a rule nisi granting an interim interdict against all of the Identifiable Respondents and Unidentifiable Respondents. On the return date, only the second to 174th applicants were still on strike. Oak Valley abandoned its case against 191 of the Identifiable Respondents, who were no longer on strike, and sought a final interdict only against the Unidentifiable Respondents, CSAAWU and the second to 174th applicants.

The Labour Court held that an interdict against Unidentifiable Respondents of the public would not be competent because the Labour Court, by virtue of the language of section 68(1) of the Labour Relations Act 66 of 1995 (LRA), did not have authority over such persons.

The Labour Court did, however, confirm the rule nisi against CSAAWU and the 173 employees who were still on strike.

On appeal, the Labour Appeal Court refused to uphold parts of the Labour Court’s order that had the effect of evicting striking employees who reside on Oak Valley’s property.

It also concluded that the Labour Court did not have jurisdiction over alleged breaches of the Picketing Rules, which the LRA assigns to the CCMA, and consequently set aside portions of the Labour Court’s order dealing with non-compliance with the Picketing Rules.

The Labour Appeal Court upheld the remainder of the interdict against the CSAAWU and the second to 174th applicants because Oak Valley was

“able to name certain individuals who participated in what it considered to be unlawful acts together with a further group of unnamed but clearly unidentifiable individuals”.

The Court was satisfied that

“to insist in the fraught context of an industrial relations dispute that an employer can only gain relief against those employees which it can specifically name from a group which was involved in unlawful activity is surely a bridge too far in that it could render an employer, in significant part remediless, notwithstanding a clear apprehension of harm”.

On appeal to the Constitutional Court, the applicants argue that the effect of the Labour Court and Labour Appeal Court judgments is that 

“an interdict can be issued against a person who merely participated in a protected strike or a lawful protest during which others committed some unlawful conduct”.

The applicants contend that the Labour Appeal Court applied the incorrect test for establishing whether the final interdict ought to have been granted against the employees who remained on strike. The applicants do not dispute that certain unlawful conduct took place but maintain that the conduct was not attributed to them.

They say that the real question in this matter is not whether the conduct complained of occurred and was unlawful – it is whether that conduct can rationally be linked to the parties against whom the interdict was ultimately granted.

Absent a “rational factual connection” drawn between these incidents and the applicants, members of the public at large could just as easily have been responsible.

The applicants say that the papers and the findings of the Labour Court and Labour Appeal Court do not establish a factual link between the applicants and the conduct they were interdicted and restrained from committing.

The respondents do not oppose the appeal and have not filed opposing papers.