In the case of Betafence South Africa (Pty) Ltd v NUMSA & Others 2016 the employees of Betafence embarked on a strike without issuing a strike notice. Betafence immediately approached the Labour Court on an urgent basis to interdict the strike. Before the application could be heard, Betafence and the representing Union, NUMSA agreed on the terms of a Court order which suspended the strike with immediate effect and time limits were agreed upon for both parties to file affidavits in the Labour Court application.
In complete disregard of the above the employees proceeded with their strike and Betafence approached the Labour Court to have NUMSA and the striking employees held in contempt of the above court order.
Legal and factual issues
The Betafence’s argument for the contempt order was that the strike embarked upon by the employees was unprotected resulting from their failure to comply with the provisions of section 64(1)(b) of the Labour Relations Act. Furthermore, that the provisions of section 65(3)(a)(i) of the Labour Relations Act precluded a party from embarking on strike action where they are bound by collective agreement which regulates the issues in dispute.
The right to strike entrenched in section 23(2)(c) became limited by virtue of the provisions of section 65 of the Labour Relations Act. Based on the settlement agreement concluded, with time limits stipulated, which was made an order of court, nothing contained therein precluded the striking employees from exercising their rights in terms of other various forums in accordance with the Bargaining Council’s Dispute Resolution Policy.
Contempt of court
The Labour Court said that the pre-requisites for making any contempt of court ruling are that there must have been a court order and the court order must have been properly served on the parties bound by it and that there must have been non-compliance with the court order.
One of the terms of the order in the case under discussion was to suspend the strike in respect of which the employees did not comply with. It was conceded by Betafence that NUMSA attempted several times to have the employees comply with the court order but to no avail. The court referred to North West Star (Pty) LTD (Under Judicial Management) v Serobatsre and another in which the court clearly stipulated that a person cannot say “I don’t like this court order; it is wrong; therefore I will not comply with it.”
Furthermore, the court expressed disapproval of the above conduct and stated that:
An observation that needs to be made in this Court is that employees, especially in the face of a strike interdict, routinely disregard the orders of this court for no reason other than that they simply do not like them. This contemptuous approach towards orders of this court is in some or most instances, aggravated and/or encouraged by Unions, their officials and/or shop stewards. In some instances, as in this case, employees refuse to even heed the advice of their union representatives and leaders. In the latter instance, and where unions even confirm in papers before the court that employees have indeed refused to heed court orders, the invariable conclusion to be reached is that the non-compliance by the employees was indeed both wilful and mala fide.”
The employees expressed how frustrated they were by the conduct of Betafence for not finding a resolution to the issues at hand, justifying their actions and of being in contempt of the court order. The court found this t be no excuse and held that “no amount of frustration with the employer’s alleged conduct can mitigate this level of contempt towards court order”.
The Court placed great emphasis on the effect that non-compliance with court orders has on the Rule of Law and held that:
This level of contempt has reached a point where if unchecked, the rule of law will become meaningless. In the end, anarchy and mayhem, which normally characterised most industrial actions we have witnessed, will become the new normal. This cannot bode well for our constitutional democracy, and only a stern approach by the courts can stop this slippery slope.
Notwithstanding the above, the employees were interdicted from engaging in any unlawful or violent action. Despite the criminal case having been opened regarding their behaviour, the employees filed affidavit denying having engaged in violent protests.
Order of the court
The court held that they were satisfied that Betafence had established the requirements for the final relief it sought.
The employees did not follow the proper procedures by embarking on a strike in terms of the Labour Relations Act. The strike remained unprotected in terms of section 65 read together with section 64 of the LRA. Their Constitutional Right to strike is limited by virtue of non-compliance with section 64 of Labour Relations Act.
Therefore, the Court found the employees in contempt of the court order which warranted, in the Court’s view, a heavy penalty and consequently the employees were fined R1 000 000-00 (One Million Rand) which was suspended for a period of 24 months provided they were not found in contempt of the final Order made by the Court.
By Avela Makunga