Association of Mineworkers and Construction Union and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others

AMCU represented employees at 10 mining companies and engaged in a primary strike at Sibanye Gold Limited in November 2018. While the primary strike was ongoing, AMCU gave notice of its intention to commence secondary strikes at the 10 mining companies (the secondary employers) for a period of 7 days in February 2019. The secondary strikes would have disrupted operations substantially and caused significant financial losses (exceeding R2 billion cumulatively over 7 days). The secondary employers argued the strikes had no direct or indirect effect on Sibanye's business and would cause disproportionate harm to themselves. They applied to the Labour Court for interdicts. The Labour Court found the secondary strikes were unreasonable under section 66(2)(c) of the LRA and declared them unprotected. AMCU appealed, and while the primary strike was subsequently resolved, AMCU sought to clarify the interpretation of section 66(2)(c).

• Does section 66(2)(c) of the Labour Relations Act 66 of 1995 import a proportionality assessment when assessing the substantive lawfulness of secondary strikes?
• When assessing reasonableness of multi-employer secondary strikes, should the impact on secondary employers be considered individually or collectively?
• Should the prospect of violence be a factor in assessing compliance with section 66(2)(c)?
• Should a moot matter involving interpretation of the LRA be heard?

Leave to appeal granted. Appeal against the substantive judgments of the Labour Court and Labour Appeal Court dismissed. Costs orders in the Labour Court and Labour Appeal Court set aside. Each party to pay its own costs in all courts.

Section 66(2)(c) of the LRA imports a proportionality assessment when determining whether a secondary strike is lawful. A secondary strike must: (1) have a possible direct or indirect effect on the business of the primary employer; and (2) be reasonable in nature and extent in relation to that effect. Reasonableness requires balancing the impact of the secondary strike on the secondary employer with its effect on the primary employer's business. The phrase "reasonable in relation to" imports proportionality. If a secondary strike has no effect on the primary employer, or if the effect is disproportionately harsh on secondary employers, the strike may be interdicted under section 66(3). This interpretation gives effect to the constitutional right to strike while providing necessary safeguards for secondary employers. The assessment must be conducted case-by-case based on factors including: duration and form of the strike, number of employees involved, their conduct, the sector(s) involved, and the relationships between primary and secondary employers.

The Court noted that economic loss is a predictable consequence of strikes generally, and sight should not be lost of the instrumental and transformative role of collective bargaining to remedy inequality, discrimination and poverty. Courts must be cautious when interpreting, applying and limiting the rights to bargain collectively and to strike. The Court observed that the LRA institutionalizes power-play as a driver of collective bargaining, and prudence must prevail before these rights are weakened. The Court also noted that the margin of appreciation doctrine from European human rights law is at best doubtful and possibly irrelevant in the South African context. Regarding violence, the Court stated that once strikes cease to be peaceful, they lose the protection of law, and a history of violence would be a factor in assessing reasonableness, but an interdict to stop violence should be preferred over interdicting the strike itself. The Court discussed the importance of not reading words into legislation under the guise of interpretation, and emphasized fidelity to the text in the context of negotiated legislation.

This judgment clarifies the interpretation of section 66(2)(c) of the LRA regarding secondary strikes. It establishes that a proportionality assessment is required when determining the lawfulness of secondary strikes, balancing the impact on secondary employers against the effect on the primary employer. The judgment emphasizes the constitutional protection of the right to strike while recognizing legitimate protections for secondary employers who are not parties to the primary dispute. It provides important guidance on how courts should assess multi-employer secondary strikes and the factors relevant to determining reasonableness. The decision reaffirms the importance of interpreting labour legislation purposively in accordance with constitutional rights and international labour law obligations. It also demonstrates the Court's willingness to decide moot matters where they raise discrete questions of law with ongoing significance.