This document discusses the use of court orders to control violence during strikes in South Africa. It notes that some studies have shown many union members believe violence is necessary to achieve strike demands. Court cases have established that violence distorts collective bargaining and places undue pressure on employers. The courts have increasingly called for union accountability and have issued "ensure compliance orders" requiring unions to take reasonable steps to prevent unlawful behavior by members. However, prosecuting unions for contempt of court has been difficult, as union complicity or a legal duty to act must be proven. "Ensure compliance orders" that clearly specify a union's obligations may help establish accountability and reduce strike violence.

1. Ensure compliance and contempt of court orders:
a viable means to control strike violence?
ANTON MYBURGH SC

2. COURT ORDERS TO CONTROL STRIKE VIOLENCE?
COSATU study (2012)
• 60% of members believe that
strike demands will not be
achieved without violence
2

3. Two flash points
• Early on in the strike – directed against
employer
• When support wanes – directed against
employees
Does this serve to lengthen
strikes?
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

4. Violence is a form of economic
duress
• It skews collective bargaining power
• It disturbs the forces of demand and supply
• It places undue pressure on employers to settle
• It frightens employers into settlement
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

5. Premier Foods (LC)
• ‘The aim of a strike is to persuade the
employer through the peaceful withholding
of work to agree to their demands. …
although a certain degree of disruptiveness
is expected, it is certainly not acceptable to
force an employer through violence and
criminal conduct to accede to their
demands.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

6. Tsogo Sun (LC)
• ‘When the tyranny of the mob displaces the
peaceful exercise of economic pressure as
the means to the end of the resolution of a
labour dispute, one must question whether a
strike continues to serve its purpose and thus
whether it continues to enjoy protected
status.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

7. How can this dynamic be changed?
• Better industrial relations
• Legislative amendment
• Develop the law within its existing
framework to hold unions accountable
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

8. The courts are calling for union
accountability
• They have seen too much violence
• They are looking for ways to hold unions
accountable
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

9. In2Food (LC) and (LAC)
• ‘The time has come in our labour relations
history that trade unions should be held
accountable for the actions of their members.
For too long trade unions have glibly washed
their hands of the violent actions of their
members.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

10. In2Food (LAC)
• ‘The … thesis that a trade union … has a duty
to curb unlawful behaviour by its members
indeed enjoys merit. Indeed, the principle of
union accountability for its actions or
omissions is beginning to gain recognition.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

11. Tsogo Sun (LC)
• ‘This court must necessarily express its
displeasure in the strongest possible terms
against the misconduct that the [strikers] do
not deny having committed, and against
unions that refuse or fail to take all
reasonable steps to prevent its occurrence.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

12. Problems with establishing union
accountability
• Unions are not per se accountable for conduct of
their members
• Need to establish a causal link between
members’ conduct and the union – i.e. union
complicity
• Or the union must be under a positive legal
obligation to take action
• One way of creating union accountability is
through ensure compliance orders
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

13. Ensure compliance orders
• Xstrata (LC) – the facts
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

14. Xstrata (LC)
• Four legal grounds for ensure
compliance orders:
o Section 17 of the Constitution
o Relationship of guardianship
o Collective bargaining relationship
o Process of engagement
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

15. Xstrata (LC)
• ‘AMCU cannot … when it is required to account
for the actions of its members, wash its hands of
them in the mould of the proverbial Pontius
Pilate … Orders obligating unions to ensure that
their members acted in a lawful and peaceful
manner during strikes are meant to reinforce
what the unions should know and do. In view of
the volatility associated with strikes … in the
workplace, employers are bound to depend on
the courts to issue such orders.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

16. Xstrata (LC)
• To comply with an ensure compliance
order:
o Union must take reasonable steps and
measures to ensure that its members comply
o Union must do whatever is necessary, and
within its means and powers, to ensure
compliance by its members
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

17. Xstrata (LC)
• ‘The policing function can be done by the shop
stewards, and the union’s national leadership can
provide a supporting role. … In the same fashion
that the shop stewards were used by the union
to organise the action in question, they can and
should be used to control it. … this is not too
much to ask from a union in the bigger scheme
of things, especially where the action in question
has turned violent.’
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

18. Crafting ensure compliance orders
• To be enforceable they must specify a union’s
obligations
• For example, the union may be required to:
o Assist with service – loud hailers
o Display the court order at its offices
o Issue a public statement
o Hold a mass meeting
o Despatch marshals to hot spots
o Set up a hot line
o Report back to court on steps taken
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

19. Union disobedience with ensure
compliance orders
• Possibility of contempt of court
applications arise
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

20. Contempt of court
• Requirements:
o Order
o Service
o Non-compliance
o Wilfulness and mala fides (presumption)
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

21. Four recent judgments where
contempt applications failed
• In2Food (LAC) – union complicity not established
• Xstrata – service, and wilfulness / mala fides not
established
• Ciro Business Solutions – service not established
• Anglo Platinum – order ambiguous
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

22. Two cases where contempt
applications succeeded
• Security Services Employers’ Organisation
(LC)
• Supreme Spring (LC)
Fines up to 500k
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

23. Other means of curbing strike
violence
• Claims for civil damages
• Claims for compensation – section
68(1)(b)
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

24. Conclusion
• Defining the future: union accountability
for strike violence
• May go some way to reducing incidences
of strike violence
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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

25. THANK
YOU
18 September 2014
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