The labour court has no jurisdiction to decide a claim for compensation for loss linked to conduct that occurs during a protected strike, the Constitutional Court ruled on Wednesday.
The judgment providing crucial clarity on the jurisdiction of the labour court was decided in the case of Massmart Holdings, a wholesale giant with over 300 stores, against the South African Commercial Catering and Allied Workers Union (Saccawu).
Massmart went to court seeking compensation of over R9m for losses allegedly suffered as a result of “unlawful” conduct by the union’s members during the protected strike in 2021.
The effect of the judgment is that Massmart will have to initiate its claim in a high court for the matter to be decided on its merits. The judgment of the top court deals only with the jurisdiction question and not the damages claim.
Massmart said the union’s picketers blocked store entrances and damaged property, resulting in stores being closed and losses of over R9m. It pinned the litigation on 68(1)(b) of the Labour Relations Act (LRA), which empowers the court with jurisdiction to order payment of just and equitable compensation for any loss attributable to an unlawful strike.
The union strike in 2021 was protected. Saccawu argued that the labour court has no jurisdiction to decide on the litigation because the compensation sought was against a protected strike, not an unprotected strike. The union lost the jurisdiction case at the labour court and labour appeal court, and appealed to the top court.
We are delighted as workers with this judgment. It clearly demonstrated that there is no amount of money that can take away the rights of workers. The workers have an inherent right to withdraw labour the way they wish within the ambit of the law
— Jerry Mmoneri, Saccawu deputy general secretary
In a majority judgment written by Steven Majiedt, the Constitutional Court ruled in favour of the union on Wednesday, finding that the labour court had no jurisdiction to decide on a compensation claim for a protected strike.
“Section 68(1) only applies to those cases where an employer is seeking relief pursuant to the employees’ participation in an unprotected strike or the employees’ participation in conduct in support of an unprotected strike. It most certainly does not apply to protected strikes,” Majiedt said.
For the labour court to decide on the R9m damages claim it had to be an unprotected strike.
“If the legislature had intended to grant jurisdiction to the labour court in respect of delictual conduct in support of a protected strike, section 67 would have been the place to do it, yet it is not there.
“Of course, this does not take away the employer’s right to claim damages in delict for such conduct if it is criminal — section 67(8) — but the employer needs to claim such damages in the ordinary courts and not in the labour court.”
The appeal was upheld and the order of the labour appeal court was set aside.
Saccawu deputy general secretary Jerry Mmoneri described the judgment as protection of the rights of workers.
“We are delighted as workers with this judgment. It clearly demonstrated that there is no amount of money that can take away the rights of workers. The workers have an inherent right to withdraw labour the way they wish within the ambit of the law,” he said.
The matter can be enrolled in the high court for ventilation of the damages claim.
Business Day
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