An Evaluation of the Limitation of the Right to Strike in Terms of the Law of General Application in South Africa

• Jurisdiction: South Africa
• Author: Mlungisi Tenza
• Pages: 471-492
• Date: 27 May 2019
• Published date: 27 May 2019
• Citation: (2018) 29 Stell LR 471

471

AN EVALUATION OF THE LIMITATION OF THE

RIGHT TO STRIKE IN TERMS OF THE LAW OF

GENERAL APPLICATION IN SOUTH AFRICA

Mlungisi Tenza

LLB LLM LLD

Lecturer, University of KwaZulu-Natal

1 Introduction

The Constitution of the Republic of South Africa, 1996 (“Constitution”)

includes a Bill of Rights providing for fu ndamental rights.1 The Bill of Rights

contains both individual and group rights. These rights are, however, not

absolute, and may be limited in terms of section 36 of the Constitution. The

reasons advanced for the li mitation of different rights in the Constit ution may

differ depending on the circumstances and context in which the right(s) is/

are exercised. Among the rig hts entrenched in the Constitution, is the r ight of

workers to s trike.2 However, exercising the right to strike a nd other associated

rights must not infringe the rights of others. It has, however, become a norm

in South Africa that when workers exercise their right to strike or engage in

conduct in contemplation or in fu rtherance of a strike, a mea sure of disruption

or damage to property often takes place.3 The consequence is that the right

of people to live in an environment that is free from violence is affected in

one way or another.4 The question that arises is how the right to strike can

be limited if exercising it affects other people or their rights negatively. The

Labour Relations Act 66 of 1996 (“LRA”) makes provision for the limitation

of the right to strike in section 65(1). However, these limitations seem to be

inadequate as the exercise of the right to strike often becomes violent. The

article therefore proposes further limitations in terms of section 36 of the

Constitution.

The article investigates how the limitation clause in the Constitution can

be used to limit the right to strike if participants cause damage to property

or harm other people. It is argued that the right to strike is not absolute, and

like most rights in the Bill of Rights, can be limited if the limitation passes

constitutional muste r in terms of section 36.5

1 Ch 2 of the Constit ution of South Afr ica, 1996.

2 S 23(2) (c).

3 Food and Allied Worker s Union obo Kapesi v Premier Food s Limited t/a Blue Ribbon Salt Riv er 2012

33 ILJ1779 (LAC); Natio nal Union of Mineworker s v Goldfields Secu rity Ltd 1999 ILJ 1553 (LC); and

Mondi Ltd (Mond i Kraft Divisio n v Chemical Energ y Paper Print ing Wood & Allied Workers Unio n) 2005

26 ILJ 1458 (LC).

4 S 12(1)(c) of the Constitution.

5 S 36.

(2018) 29 Stell LR 471

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2 The constitutional right to strike

The right to strike is entrenched in section 23 of the Constitution.6 This

right, together with other rights guaranteed in the Bill of Rights, needs to be

properly understood as par t of the Constitution as a whole and as a signicant

element of the Constitution’s aim to transform the South African society.7

The Constitution proclai ms itself as the supreme law of the Republic and any

law or conduct contrary t o its provisions or ambitions of creating a stable and

democratic society based on human dignity, equalit y and freedom, should be

declare d invalid.8 It fur ther proclaims, in the Preamble, that it ai ms to heal the

divisions of the past and to create a so ciety based on democratic values, social

justice, and fund amental human rights.9

The Constitution makes the right to strike available to a “worker” in the

singular.10 It fur ther provides that national legislation may be enacted to give

effect to the rights in the Bill of Rights.11 As a result, the LRA was enacted.

The LRA denes a st rike as:

“[T]he partial or complete concerted refusal to work, or the retardation of work, by persons who are

or have been employed by the same employer or by different employers, for the purpose of remedying

a grievance or resolving a dispute in respect of any matter of mutual interest between employer

and employee, and every reference to ‘work’ in this denition includes overtime work, whether it is

voluntary or compulsory.”12

According to the denition in the LRA, a strike is constitut ed by a group of

people with a common goal of resolving a labour dispute between them and

an employer or employer’s organisation.13 This means that the right to strike

cannot be exercised by a single employee acting alone and such strike must

have a particular goal or pur pose. It is also not a requirement in terms of the

LRA that participants in a strike must be af liated to a tra de union or that a

trade union mus t call the strike. It seems sufcient that the re must be a group

of employees having a dispute with their employer that concerns common

grievances or demand s.

2 1 Protected and unprotected strikes

The LRA fu rther provides protection to a str ike or conduct in contemplation

or in furtherance of a strike if there is compliance with sections 64(1) and

65(1). These two sections, resp ectively, make provision for the procedure that

must be followed prior to convening a strike a nd the statutory prohibitions on

striking under certain circumstances. Section 64(1) provides that the matter

giving rise to a dispute must be referred to the relevant bargaining council

or Commission for Conciliation, Mediation and Arbitration (“CCMA”) for

6 S 23(2) (c).

7 I Currie & J de Waa l The Bill of Rights Handbo ok 6 ed (2013) 1.

8 S 1 of the Constit ution.

9 See Preamble to t he Constitution .

10S 23(2 )(c).

11S 23(6 ).

12S 213 of the LRA.

13Ceramic Indu stries Ltd t/a Bet ta Sanitary ware v National Co nstructio n Building & Allied Worker s Union

1996 17 ILJ1094 (LC).

472STELL LR 2018 6

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