South African Transport and Allied Workers Union (SATAWU) and Dumisani Jama and 62 Others v Lebogang Michael Moloto N.O. and Jerry Sekete Koka N.O.

Equity Aviation Services employed 1157 permanent employees, of whom 725 were members of SATAWU (the majority union). SATAWU was the recognised majority union and bargaining agent for all employees under a recognition agreement, and there was an agency shop agreement whereby non-members paid fees equal to union membership dues. After wage negotiations broke down, SATAWU referred the dispute to the CCMA for conciliation on 13 November 2003. Conciliation failed and a certificate of non-resolution was issued on 15 December 2003. On the same day, SATAWU issued a strike notice on its letterhead stating: "We intend to embark on strike action on 18 December 2003 at 08H00." The notice referred only to the union's members. The second to sixty-fourth applicants (dismissed strikers) were not SATAWU members and did not issue separate strike notices. SATAWU members commenced the strike as planned and Equity accepted their strike action as protected. The dismissed strikers also participated in the strike despite warnings from Equity that their participation was unlawful for lack of strike notice. Equity dismissed them on 19 November 2004 for unauthorised absence from work.

• Whether section 64(1)(b) of the Labour Relations Act requires every employee who intends to strike to personally or through a representative give notice of the strike, or whether a single notice by a trade union covers all employees who wish to participate in the strike
• Whether non-unionised employees who did not issue separate strike notices could lawfully participate in a strike where only the majority union issued notice on behalf of its members
• Whether the dismissal of the non-unionised employees was automatically unfair under section 187(1)(a) of the Labour Relations Act
• The proper interpretation of section 64(1)(b) in light of the constitutional right to strike under section 23(2)(c) of the Constitution

The majority granted leave to appeal, upheld the appeal with costs including costs of two counsel, and declared that the dismissal of the individual applicants on 18 November 2004 was automatically unfair in terms of section 187(1)(a) of the Labour Relations Act.

Section 64(1)(b) of the Labour Relations Act requires only that written notice be given to the employer at least 48 hours before commencement of a strike, stating when the strike will commence. It does not require every employee intending to strike to give individual notice personally or through a representative, nor does it require the notice to specify the number or identity of employees who will participate. Where a trade union represents employees (including non-members) in collective bargaining and conciliation under section 64(1)(a), a single strike notice by that union is sufficient to protect the participation of all employees it represents in the strike. The right to strike under section 23(2)(c) of the Constitution is conferred without express limitation and should not be unduly restricted by reading implied requirements into the Act's provisions. Procedural pre-conditions for strike action must be interpreted in a manner least restrictive of the constitutional right to strike if the text is reasonably capable of bearing that meaning. The purpose of the strike notice is to warn the employer of impending strike action and when it will commence, not to provide full disclosure of all employees who may participate. Where employees were represented by a union in negotiations and conciliation referral, that union is competent to give the single notice required under section 64(1)(b) on behalf of all those employees.

Maya AJ's minority judgment observed that strikes are inherently disruptive and that the volatility of industrial action must rank highly among the issues that the Act's primary objects seek to address. She noted that the right to strike remains an individual right exercised by individual choice despite being effectively exercised collectively, and that to have worth it must be connected to the person who intends to exercise it. She suggested that non-unionised employees have relatively simple options such as compiling a record of their particulars or seeking inclusion in the union's notice. The majority judgment noted that the right to strike has associational aspects which enhance and reinforce other social and political rights in the Constitution, particularly freedom of association, and that it is significantly more than merely a means to an end. The majority observed that requiring fuller information in strike notices would lead to greater uncertainty and a chilling effect on workers' reliance on their right to strike, as illustrated by the employer's shifting grounds for objection in this case. Yacoob ADCJ noted that to require more onerous notice requirements from non-unionised and minority union employees than from majority union employees would place a greater restriction on those already denied the right to bargain collectively on their own behalf.

This case is significant for South African labour law as it authoritatively interprets section 64(1)(b) of the Labour Relations Act concerning strike notice requirements. The majority judgment affirms that a single strike notice by a representative union is sufficient to protect all employees who participate in the strike, including non-unionised employees and minority union members, provided the union represented them in collective bargaining. The judgment emphasizes a purposive, rights-enhancing interpretation of the Act that does not unduly restrict the fundamental constitutional right to strike. It balances the competing interests of orderly collective bargaining against workers' rights, holding that minimal procedural requirements serve both purposes adequately. The decision protects vulnerable non-unionised workers from being excluded from protected strike action and reinforces that the right to strike is meant to address power imbalances between employers and employees. It provides important guidance on interpreting labour legislation in a manner consistent with constitutional rights.