The nature of strikes in South Africa over the past five years has become consistently more violent, to the extent that strikers often expect and/or believe that violence is the only method of forcing a result in a strike.
Strikes are designed to be a lawful means of allowing employers and workers to engage with each other in power play, in an endeavour to force a result related to matters of mutual interest, usually dealing with issues such as wages and employment conditions.
Traditionally employers have relied on the police and their own security to try and combat the violence which is steadily getting worse. Recent reprisal tactics have included strikers going to the home of an employee who is not striking, setting the house alight, taking a photo and SMSing the picture to the working employee, or to launch attacks in the middle of the night.
These types of tactics would perhaps be considered as some form of warfare or terrorism in other countries but have become par for the course here in South Africa.
The irony of the situation is that should roles be reversed and employers orchestrate similar violence (during lock-outs for example), South Africa would find itself visited by an armed force appointed by the United Nations or the International Criminal Court.
Our Courts have queried from time to time their concerns with whether violent strikes are still strikes. See FAWU v Premier Foods (2010) ILJ 1654 (LC), “Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands.”
In a recent matter of Willowton Logistics, a division of Willowton Group (Pty) Ltd vs Tirisano (Transport and Services Workers Union), unreported, Case No. 0571/15, our firm brought an urgent application to declare that the strike was no longer a strike by virtue of the fact that the purpose of the strike was no longer a matter of mutual interest but merely the perpetuation of violence. The Court granted a final interdict on this basis and brought the strike to an end.
Going forward, this is an important area to consider in circumstances of violent strikes.