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
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
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
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
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The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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