Johannesburg Roads Agency (SOC) Limited v South African Municipal Workers Union (SAMWU)

The parties were in dispute about 'historical pay progression'. On 5 April 2019, the individual respondents (employees who were members of SAMWU) stopped work at approximately 9am and marched to the applicant's building in Pixley Ka-Seme Street, Johannesburg. The employees remained at the building until approximately 3pm when they were addressed by the applicant's managing director. During this period, various unlawful acts occurred including breaking down doors, breaking windows, burning tyres and plastic road cones, smashing pot plants, barricading public roads, overturning furniture, threatening to burn down the building, placing garbage on the entrance steps, and blocking access to and egress from the building. The applicant obtained a rule nisi on 12 April 2019 interdicting the respondents from participating in an unprotected strike. The respondents opposed confirmation of the rule, arguing there was no strike as they were merely 'waiting for feedback' from the applicant, and that the situation had been provoked by the applicant.

• Whether the employees' conduct on 5 April 2019 constituted a strike as defined in section 213 of the Labour Relations Act
• Whether the strike (if it existed) was protected or unprotected
• Whether the applicant was required to identify and cite specific individuals who committed acts of misconduct in order to obtain interim relief
• Whether the union should be held liable for costs given the conduct of its members

1. The rule nisi issued on 12 April 2019 was confirmed. 2. The first respondent (SAMWU) was ordered to pay the costs of the proceedings, including the costs of 6 June 2019 when the matter was postponed due to late filing of the answering affidavit.

A concerted refusal to work for the purpose of remedying a grievance or resolving a dispute constitutes a strike under section 213 of the LRA, regardless of whether employees characterize their conduct as 'waiting for feedback'. In urgent interim applications to interdict strike action and associated misconduct, it is not necessary for an applicant to identify and cite each individual who participated in or committed acts of misconduct - it is sufficient to prohibit a group of employees from engaging in unlawful conduct. However, individual identification would be required for subsequent disciplinary proceedings. Trade unions may be held liable for costs where their members engage in unlawful conduct during an unprotected strike and the union takes no steps to prevent such conduct or distance itself from it. The constitutional rights to bargain collectively and to strike do not extend to destructive and violent conduct including damage to property.

The court observed that the respondents had an 'impoverished conception' of collective bargaining that wrongly extended to a right to resort to unlawful action and property damage in pursuit of demands. The court noted that while provocation by an employer is not relevant to determining whether a strike exists, it may be relevant when determining appropriate sanctions for participation in an unprotected strike under item 6(1)(c) of the Code of Good Practice: Dismissal. The court expressed disapproval of the late filing of the answering affidavit only one day before the return date. The court emphasized that good faith bargaining requires constructive engagement without unreasonable, disruptive or abusive behaviour, citing the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing. The court noted that the costs of repairing damage caused by the strike would ultimately be borne by Johannesburg ratepayers, and questioned why they should underwrite the legal costs as well.

This case provides important guidance on: (1) the definition of a strike under section 213 of the LRA and the rejection of arguments that employees are merely 'waiting for feedback' when they engage in concerted work stoppages; (2) the proper approach to citing respondents in urgent interim applications to interdict unprotected strike action, clarifying that individual identification is not required for interim relief but would be necessary for disciplinary proceedings; (3) the accountability of trade unions for the unlawful conduct of their members during strike action, particularly where the union takes no steps to prevent or distance itself from such conduct; (4) the application of the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, emphasizing that collective bargaining rights do not extend to destructive and violent conduct; and (5) the exercise of the court's discretion under section 162 of the LRA to award costs against a union where its members engage in aggravated unlawful conduct during an unprotected strike.