PICKET vs GATHERING

(National Union of Metal Workers of South Africa and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (6/2020) [2020] ZASCA 161 (7 December 2020))

Is a picket organised by a trade union in furtherance of a protected strike, a gathering to which the provisions of the regulations of gatherings act can apply? This is the question which the SCA was faced with in the case of National Union of Metal Workers of South Africa and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (6/2020) [2020] ZASCA 161 (7 December 2020). The SCA answered in the negative, it found that a picket authorised in terms of the Labour Relations Act (LRA) is a form of demonstration in the context of strike action, to which section 11 of the Regulation of Gatherings Act cannot find application.

A picket is a form of a strike action, whereby employees congregate outside a workplace to peacefully encourage the non-striking employees to support the strike.

Section 67(2) and (6) of the LRA provide protection to striking employees by providing that a person does not commit a delict or breach of contract by taking part in a protected strike or picket and that civil legal proceedings may not be instituted against such persons.

A gathering is defined, in terms of Regulations of Gatherings Act 205 of 1993 (Gathering Act), as any assembly, concourse or procession of more than 15 persons in or on any public road or any other public place or premises wholly or partly open to the air. Chapter 1 of the act set outs various steps that need to be taken by an organization seeking to hold a gathering.

Section 11 of the Gathering Act states that the organizers of the gathering shall be jointly and severally liable for any riot damage together with any other person who unlawfully caused or contributed to such riot damage.

In the above case, NUMSA on behalf of its members gave a notice of intention to strike and authorized a picket, following an unresolved dispute at the CCMA. The picket allegedly became violent, which resulted in property damage.

Dunlop issued summons against NUMSA and its members, seeking to recover the cost of the property damage and the security services employed. Dunlop alleged that the damage caused constituted riot damage in terms of the Gatherings Act. NUMSA defended the action and stated that the picket was in furtherance of a protected strike and as such the Gatherings Act does not apply.

HIGH COURT PROCEEDINGS

The High Court was to decide whether the picket convened by NUMSA and its members constituted a gathering to which the provisions of the gatherings act apply? The High Court found that yes, the provisions of the gatherings act can be applied in instances of picketing where acts amounting to an offence are committed. In such instances, the participants lose the protection of section 67(2) and (6) of the LRA and can be liable for prosecution and payment of delictual damages.

SUPREME COURT OF APPEAL PROCEEDINGS

The SCA wholly disagreed with this finding. It reasoned as follows: –

A picket is a bargaining method employed by the employees to increase the impact of a strike action and to further its objectives. The court found that whilst a picket may fall within the ambit of a gathering, it remains a form of organized expression which is central to the exercise of the right to strike.

The LRA provides requirements that need to be complied with in order for a picket to fall within the ambit of section 69 and secure the protection of section 67. Should a picket not comply with the relevant provisions, then the employer may utilize the remedies provided in terms of section 68, which provide for an order interdicting the illegal act or an order for just and equitable compensation for any loss attributable to the picket.

Thus, the provisions of the Gatherings Act cannot find application to a picket authorized in terms of the LRA. A picket, also, cannot be prohibited in terms of section 5 of the Gatherings Act, the employer would have to use section 68(1) of the LRA.

Counsel for Dunlop argued that a party can rely on section 11 of the Gatherings Act for any liability which arises upon the occurrence of riot damage as this section provides a remedy whether or not the gathering is convened in terms of the Gatherings Act. The court rejected this argument by stating that, that would mean that a picket would need to be found as a form of a gathering or demonstration that is not necessarily governed by the gatherings act but still included under section 11 for purposes of liability for riot damage. This then will further necessitate that section 11 be seen as a stand-alone remedy available to a person that suffered damages as a result of a picket.

The court found that there is no basis for this strained interpretation of the acts. A picket remains a form of organized expression which is central to the exercise of the right to strike and wholly governed by the LRA. And the Gatherings Act seeks to give effect to the constitutional right to assembly.

The Court held that section 11 of the gatherings act cannot find application to any claim of loss attributable to a picket authorized in terms of the LRA.

Contributor: Noluthando Dlamini
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