On 28 January 2025, the Durban Labour Court in South African Container Depots (Pty) Ltd t/a Bidvest SACD v Sheriff: Durban Coastal, Provincial Commissioner: SAPS, NUMSA, RETUSA and others 2025 ZALCD 3 dismissed an urgent application by Bidvest to, amongst other things, have a protected strike declared unprotected on the basis of acts of extreme violence committed against its employees and those of its contractors,and interdicting the employees from striking until picketing rules had been agreed or issued by the CCMA. Bidvest argued that the violence was directly linked to the strike, and that as a result, the strike had become counter productive to collective bargaining.
Background
Bidvest operates in the road freight and logistics industry. In 2024, it commenced a large-scale retrenchment process in terms of section 189A of the Labour Relations Act, 66of 1995 (“LRA”). On 27 December 2024, at the conclusion of the consultation process, Bidvest issued affected employees with letters advising them of the termination of their employment.
In terms of section 189A of the LRA employees who want to challenge the substantive fairness of their retrenchments have an election to either go on strike or to refer a dispute to the Labour Court for adjudication. On 3 January 2025 NUMSA issued a strike notice, demanding that Bidvest retract the termination notices.
When the strike commenced on 6 January 2025 there were no picketing rules in place. The strike soon turned extremely violent. On the evening of 6 January 2025, a non-striking Bidvest employee was murdered at a taxi rank on his way home. Shortly after, an employee of FXO (a Bidvest's contractor) was murdered at the same taxi rank.
On 7 January 2025, a second union, the Revolutionary Union of South Africa, gave notice of its members’ intention to join the strike. A few days later, a group of Bidvest employees were shot at, as they were leaving Bidvest's premises. In the early hours of 14 January 2025, an employee of Adcorp Blu (another Bidvest contractor) was murdered at the Umbilo train station.
On 14 January 2025,Bidvest’s attorneys wrote to NUMSA, raising its concerns about the murders, and calling on NUMSA for an explanation of the action it was taking and asking for confirmation that it was investigating the murders. They reserved Bidvest's right to approach the Labour Court to have the protected strike declared unprotected considering the violent conduct surrounding it.
NUMSA responded inwriting that same day. It denied its association with any acts of violence or intimidation. It assured Bidvest that it had initiated an internal investigation into the issue and that it would not hesitate to act, should evidence become known linking the violence to the strike.
On 17 January 2025,Bidvest launched its urgent application. The matter was initially set down for hearing on 20 January 2025 but was adjourned by agreement to 23 January 2025. When the matter was heard on 23 January 2025, picketing rules had been established and accordingly the parts of Bidvest’s application dealing with the absence of picketing rules fell away.
The real issue for determination by the Court was whether the strike could be declared unprotected because of the violence and whether for that reason the strike action had become counterproductive to collective bargaining.
At the hearing Bidvest relied on two labour court judgments which support the proposition that violence can render a protected strike. These are the judgements in Tsogo Sun Casinos(Pty) Ltd t/a Montecasino v Future of South African Workers Union and Others(J2510/11) 2011 ZALCJHB 114 (“Tsogo Sun”), and NUFBWSAW and Others v Universal Product Network (Pty) Ltd (J2182/2015) 2015 ZALCJHB 421(“NUFBWSAW”).
In Tsogo Sun (a December 2011 judgment) it was not disputed that the striking employees committed violence and intimidation. The court held that where the exercise of the right to strike is sullied through acts of gratuitous violence and when the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, that one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status.
In NUFBWSAW (a November 2015 judgment), the Labour Court again confirmed that violence could rendera protected strike unprotected. The court referred to a paper entitled “What can be done about strike-related violence?” by Prof Rycroft. It endorsed Prof Rycroft’s view that where misconduct had taken place to such an extent that astrike no longer promoted functional collective bargaining that it should not be protected. In deciding this,the court would need to weigh the degree of violence against measures taken by unions concerned to curb the violence. Following the judgement, if strike violence is excessive and the union does not take proper measures to curb the violence, then a court can declare the strike unprotected.
In this matter, the Labour Court disagreed. The court found that there was no authority for the propositions advanced by Prof Rycroft or the courts in Tsogo Sun or NUFBWSAW.The court emphasised the constitutional protection afforded to the right to strike and picket. It noted that these rights can only be limited by a law ofg eneral application, like the LRA. The court considered that the limitations on the right to strike in the LRA were found only in sections 64 (the procedural limitations) and section 65 (the substantive limitations). Since neither of these sections contained an express provision that a strike marred by violence,no matter how egregious the violence, would become unprotected, a court could not itself impose extraneous limitations on the right to strike. Accordingly,regardless of the extreme violence, the strike remained protected.
Bidvest had also sought further relief to interdict the striking employees from amongst other things,unlawful conduct like assaulting, intimidating, or harassing its employees and service providers. The Labour Court also dismissed this prayer.
On this point the court referred to the Constitutional Court’s judgment in Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty)Ltd and Another 2022 (5) SA 18 (CC) (“Oak Valley”), which required that for interdictory relief to be granted, mere participation in a strike was not sufficient. A link must be established between the violence and the strikers before the unlawful conduct can be interdicted.
The court found that because the attacks took place away from the vicinity of Bidvest's site and it had not been able to identify the perpetrators that no connection could be established to grant the interdictory relief sought by Bidvest.
Conclusion
The finding in this matter represents a departure from the judgments in Tsogo Sun and NUFBWSAW. In a strike context, where unlawful conduct such as violence and damage to property is commonplace, litigants need to be confident that the court will be consistent in its application of the law. In light of this judgment, in cases where protected strikes become excessively violent, employers are safer seeking to interdict the unlawful conduct than to have the strike declared unprotected. Employers are well advised to establish a strong causal link between the violence and the striking employees. Until the Labour Appeal Court pronounces on this issue or the LRA is amended to this end, the uncertainty remains. Authors: Jose Jorge, Alex van Greuning, Shenade Hariram
