The Kwazulu-Natal High Court granted an interdict preventing protesters from chanting loudly or using any kind of instrument to make noise because tolerance levels for conducting business were exceeded by unacceptably high noise levels.
The dispute involved the La Lucia Mall owners seeking to prevent Dischem employees from picketing loudly in their basement parking area and intimidating members of the public. The first issue was whether the High Court had jurisdiction to grant an interdict in relation to a labour dispute. South African Commercial Catering and Allied Union's (SACCAWU) contended that this matter could only be dealt with by the CCMA and, if needs be, the Labour Court. The High Court ruled that it had jurisdiction as the cause of action and the relief sought was couched squarely within the common law of nuisance.
SACCAWU's representative claimed that "noise is plainly part of the picket" and that "the only issue should be one of degree". SACCAWU further contended that the application for the interdict conflicted with collective bargaining provisions in the Labour Relations Act which prohibits any civil proceedings being instituted against any person for any conduct in contemplation or in furtherance of a protected strike.
The employees have a constitutional right to picket and a right to freedom of expression but SACCAWU could not deny that the owner and the tenants conducting business in the mall had a right to property, to trade and to a healthy environment. It was for the court to balance these two constitutional rights.
The court held that: "like all other rights, the right to demonstrate, bargain collectively, strike and picket are not unlimited and absolute. Inevitably in the nature of pickets, non-parties to the labour dispute are inconvenienced sometimes even prejudiced." It followed that the justifiable limitation on SACCAWU was to exercise their right to picket with a lower noise level. They were not precluded from demonstrating, singing and chanting softly.
The owners led expert evidence that the striking employees' noise levels had exceeded 100 decibels, with regulations only permitting 85 decibels, but led little or no evidence that the employees were intimidating the general public during their picketing. On the evidence before the court the interdict was granted solely on the noise levels that infringed rights to property and trade.
Employers can approach a competent court for relief when their right to property, to trade and to a healthy environment is unduly limited by striking employees exceeding their own rights in the circumstances.
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