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Practice and procedure

Commercial Stevedoring Agricultural and Allied Workers' Union and others v Oak Valley Estates (Pty) Ltd and another - (2022)31 CC 1.11.28 also reported at [2022] 6 BLLR 487 (CC)

Subject matter classification:

Practice and procedure - Appeal and application for leave to appeal - Evidence - Required for final interdict - Evidence must establish link between each person covered by interdict and unlawful conduct sought to be restrained.

Practice and procedure - Interdicts - Against strikers - Requirements - Final interdict against unlawful conduct during strike must link each individual striker to alleged misconduct - Employer failing to establish such link to mass of strikers, except two - Interdict unjustified.

Strikers - Interdicts against - Interdict against strikers must be based on evidence linking each individual striker to misconduct alleged by employer, even if by association - Employer failing to establish such link to mass of strikers - Interdict unjustified.

Mini Case Summary:

Some 364 members of the appellant union ("CSAAWU") embarked on a protected strike over the first respondent's refusal to permanently employ seasonal workers and alleged racist allocation of housing. Just before the start of the strike, the CCMA drafted picketing rules which confined picketers to a designated area 800 metres from the entrance to the farm of the first respondent ("Oak Valley") farm and prohibited them from committing unlawful acts such as carrying dangerous weapons and intimidating non-strikers and customers. The rules were breached in several respects after the strike commenced and the commissioner convened a meeting to discuss CSAAWU's request for clarity on the picketing rules. Oak Valley sought an assurance that union members would abide by the picketing rules and warned that if intimidation and damage to property continued it would approach the Labour Court for an interdict. CSAAWU denied that its members were responsible for unlawful action, which it claimed was being perpetrated by community members over whom it had no control. On the following day, Oak Valley sought an interim order against CSAAWU, all 364 workers who had initially taken part in the strike and against "unidentifiable respondents" who it maintained had associated themselves with the strikers prohibiting them from unlawfully interfering with its operations and ordering them to adhere to the picketing rules. The Labour Court granted the interdict, after which 191 strikers resumed work. On the return date, Oak Valley abandoned its case against these employees and sought final relief against the remaining strikers, the unidentifiable respondents, and the union. The Labour Court accepted that it could not grant relief against the unidentified respondents but granted final relief against the remaining strikers and CSAAWU. On appeal, the LAC accepted that the court below lacked jurisdiction to entertain the alleged breaches of the picketing rules because Oak Valley had not referred a dispute to the CCMA on that issue and that the interdict was too broad. The LAC found, however, that the first respondent had established a link between the conduct of the remaining strikers and the unlawful conduct and amended the interdict granted by the Labour Court to restrain the remaining strikers from inter alia interfering with Oak Valley's operations, non-strikers, and customers and CSAAWU from inciting unlawful conduct and directing the union to call on its members to comply with the picketing rules. CSAAWU conceded that unlawful conduct had occurred but contended in its unopposed application for leave to appeal further that the courts below had erred by ignoring the principle that interdictory relief is competent only if there was factual proof of a link between the alleged unlawful conduct interdicted and every person bound by the interdict, which it contended was lacking in this case.

Having held that it had jurisdiction to entertain the appeal because it concerned a matter of public importance, the Court posed the question before it as follows: "Can an employer faced with unlawful conduct committed during a protected strike interdict employees participating in that strike without linking each employee to the unlawful conduct?" The Court distinguished between cases in which people engaged in unlawful conduct are identified by name and those which required proof of a link between the respondents which the employer reasonable believes will persist with misconduct if an interdict was not granted. This case concerned the latter: the central issue was whether that link had been established.

The Court held further that, interdicts play an important role in a constitutional state. Interdicts are aimed at protecting people from actual or threatened unlawful conduct.

Such an injury must be "reasonably apprehended". Where the evidence does not prove a link between the respondent and the actual or threatened injury, the apprehension cannot be reasonable. The issue in this case was whether mere participation in the strike was enough to establish the link. If so, innocent strikers will enviably be caught in the net of the interdict. The LAC's view that innocent persons have nothing to fear from an interdict because if contempt proceedings were to follow the link would have to be proved was no answer to the concern of innocent bystanders, who suffer prejudice regardless of whether they escape conviction for contempt of court - this is the imputation that they have acted unlawfully, which is serious and might have a chilling effect on the exercise of the constitutional rights to strike and protest. While the "so what" view of the LAC might have intuitive appeal, it provided no answer to the effect such interdicts might have on individuals who wish to strike or protest lawfully.

The Court held further that copious case law makes it clear that when an applicant seeks a final interdict against groups of individuals the proof offered in substantiation of the claim that an injury is reasonably apprehended must be carefully assessed, even in the strike context. In one judgment, the Labour Court had deplored the tendency of employers to seek general interdicts against strikers without laying a proper basis for relief. This warning applied in the present case. Binding judgments, including those concerning protest action, have endorsed the proposition that in every case where final relief is sought a factual link between each individual respondent and actual or threatened unlawful conduct must be established.

The Court held further that a link may be established where strikers or protesters commit unlawful acts as a cohesive group. Employers may obtain relief against strikers by proving that they rendered themselves guilty of criminal conduct by association. This will depend on the facts of each case. Where unlawful conduct during a strike or protest action is widespread and continuous, individuals may have to prove that they have dissociated themselves from it. However, where unlawful conduct has been sporadic and isolated only individuals who have been proved to have associated themselves with the unlawful conduct complained of may be interdicted.

The Court noted further that the law reports are replete with cases in which strike-related misconduct has been deplored by the Labour Courts. But those courts have also warned against employers using interdict proceedings for ulterior motives which undermine collective bargaining and debase the rule of law. The requirement of a link between individual strikers balances the conflicting interests of employers and employees in this context. Direct evidence is not required; employers may discharge the onus by putting up facts from which an inference may be drawn on the probabilities that each striker was engaged in unlawful conduct. This will be assisted by modern technology like access control devices and CCT V cameras.

Turning to whether the required link had been established in this case, the Court noted that final orders may be granted in interdict proceedings only if the facts averred in the founding affidavit which are admitted by the respondent justify such an order, unless the respondent's version consists only of bald denials or manufactured factual disputes. Where there are factual disputes, the trial court generally has an advantage and should be deferred to by an appeal court. Such deference is not required where, as here, the matter is decided on affidavit. In the case against all the strikers, the first respondent had relied on video footage, audio recordings and photographs. There was no indication in the judgments under appeal that the respondents had made video and audio recordings available to the courts, as they had undertaken to do. Photographs annexed to Oak Valley's founding affidavit did not identify the persons portrayed, which had been done in some cases only in reply.

A careful analysis of the evidence satisfied the Court that a link had not been established between the 364 individuals initially cited and the unlawful conduct that had occurred. Photographs of alleged arson, damage to vehicles and acts of intimidations fell woefully short of the specificity and standard of proof required. Affidavits which mentioned these incidents were also largely hearsay. The case against CSAAWU failed for the same reasons. However, the union had not controverted the claim that an identified union official and a striker had made "incendiary" remarks which clearly linked them to the misconduct.

For the remaining strikers, the appeal had to succeed. Since the LAC's ruling that the allegations did not cover breaches of picketing rules or the conduct of members of the community had not been challenged, it was unnecessary for the Court to deal with those issues.

Leave to appeal was granted and, save for the findings in respect of the union official and the one identified striker, the appeal was upheld.