South Africa: Damage During A Strike - Can Employers Get Their Money Back?

Last Updated: 12 October 2011
Article by Stuart Harrison

Most Read Contributor in South Africa, September 2016

National and regional strike action this year has seen an unfortunately high incidence of violent conduct by strikers causing damage to property and physical harm. This abuse of the legitimate right to strike has resulted in renewed calls for legislation to be changed to provide innocent employers who are the victims of such behaviour, with proper legal protection and remedies. However, legislative change in this area is likely to be a long time coming, if it ever comes at all. So, what are the existing remedies available to employers who suffer such conduct?

Conduct during a protected strike

Striking employees and unions engaged in a protected strike are immunised from civil claims for damages courtesy of sections 67(2) to (6) of the Labour Relations Act, which provides amongst other things, that a protected strike and conduct in furtherance thereof is not a delict or a breach of contract and civil proceedings may not be instituted against participants because of the participation therein.

This immunity does not apply, however, to conduct during a protected strike that constitutes an offence. Strikers who participate in a rampage through the employer's premises and damage equipment, warehoused goods, furniture or offices as they go along (unfortunately an all-too-common occurrence in protected strikes these days), commit offences and such conduct does not enjoy protection. Apart from seeking urgent orders from the Labour Court interdicting such behaviour and laying complaints of criminal conduct with the South African Police Service (SAPS), those involved can be held civilly liable for losses suffered by the employer in this regard. The employer can institute civil claims against the culprits to recover contractual or delictual damages. The problem, of course, is that the strikers will often not be able – due to a lack of means - to pay any meaningful contribution towards the usually substantial losses suffered. Obtaining civil judgments against offending strikers is therfore usually more of a symbolic exercise than one which is aimed at securing real recompense for the employer. And, holding the union liable is often difficult as there may not be any evidence that the union itself (through its officials) instigated, encouraged or participated in the unlawful behaviour.

Unprotected strikes and conduct in furtherance thereof

The position is the same in relation to such behaviour during an unprotected strike, save that there is an additional statutory remedy available to employers, provided for under section 68 of the Labour Relations Act, for them to recover losses they suffer as a consequence of an unprotected strike or conduct in the furtherance or contemplation thereof. The remedy in question is just and equitable statutory compensation for any loss attributable to the unprotected strike or conduct. Three key requirements must first be satisfied in order to be able to make a claim under section 68, namely (a) the strike in question must be unprotected; (b) the employer must establish that it has sustained a loss in consequence of the unprotected strike; and (c) it must be demonstrated that the union (where liability is sought to be attached to the union, as opposed to the individual strikers) participated in the unprotected strike or committed acts in contemplation or in furtherance thereof. It is possible that either the trade union or its members involved in the unprotected strike/conduct or both can be held liable for compensation awarded under section 68. Employees can be liable because they participated in the unprotected strike and are, to that extent, the direct cause of the losses suffered by the employer. The trade union can be liable if it called for a strike that is unprotected and which leads to the employer suffering losses.

Assuming the three requirements mentioned above can be met, that is not unfortunately all that is required. Section 68(1)(b) also then requires the court to consider various factors spelt out in section 68(1)(b)(i) to (iv), all of which bear on the question of whether compensation should be awarded even though the three previously mentioned requirements have been met. The factors that are taken into account in this regard are:

  • Whether attempts were made to comply with the provisions of the Act (in relation to the requirements for a protected strike) and the extent of those attempts;
  • Whether the strike or conduct in furtherance thereof was pre-meditated;
  • Whether the strike or conduct in furtherance thereof was in response to unjustified conduct by another party to the dispute;
  • Whether there was compliance with any order of the Labour Court interdicting the strike;
  • The interests of orderly collective bargaining;
  • The duration of the strike or conduct in furtherance thereof; and
  • The financial position of the employer, trade union or employees respectively.

The Labour Court takes into account the above factors in deciding whether it would be just and equitable (i.e. fair) for compensation to be awarded and, if so, what the fair quantum thereof should be. The Court exercises a discretion in this regard and does not simply apply a mechanical calculation of losses actually suffered.

There are very few reported cases of employers pursuing this statutory remedy and in all those cases, the quantum of the compensation that the court has awarded has been low relative to the losses suffered. In Mangaung Municipality v SAMWU [2003] JOL 10582 (LC), the employer had sued for losses of approximately R270 000 but the court discounted part of these losses for technical reasons and ultimately only awarded the employer an amount of R25 000 as compensation. In Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC), the employer started out by seeking damages of approximately R15 million in respect of an unprotected strike but, by the end of the trial and before judgment was given, the employer (for reasons that are not disclosed in the judgment) limited its claim to only R100 000. The court ultimately ordered that this R100 000 should be paid by the union to the employer in instalments of R5 000 per month (the judge did say, however, that "fell well within the upper limit of what I would have considered fair in all the circumstances"). The only other reported matter in which an award of compensation has been made is in the matter of Algoa Bus Company v SATAWU & Others [2010] 2 BLLR 149 (LC) in which the employer sought an award of R465 000 but was awarded only R100 000 (the court appears to have been influenced by the fact that the strike only lasted 16 hours and not for 2 days as had been claimed by the employer). The court also ordered that the R100 000 must be repaid in instalments of R50 per month! Having regard to this sort of reduced level of compensation award and the likely high cost of litigating such matters, it is little wonder that not many employers have pursued relief under this remedy.

Given the prospect of a reduced quantum of compensation award under a section 68 statutory claim, consideration could be given to pursuing a civil, delictual claim. In the ordinary course, a person who has been subjected to a civil wrong (known as a delict) by another, has a claim under the common law against the wrongdoer for damages, which are calculated to be the amount required to place the innocent party in the position it would have been had the delict not been committed. The computation of damages in this regard would not suffer from the same problems of the consideration of the 'just and equitable' factors as arise in a section 68 claim. Such a claim would usually be pursued in the common law courts (i.e. the High Court). However, there appears to be no reported case of such a claim by an employer succeeding since section 68(1)(b) has been applicable. Section 68(1) also reserves for the Labour Court exclusive jurisdiction to order payment for any loss incurred as a result of an unprotected strike or conduct in furtherance thereof, and a defendant union may try and argue that this means that the only claim that is possible is a section 68(1)(b) claim, to the exclusion of a delictual claim in the common law courts.

Employers are therefore left in a highly unsatisfactory position in relation to obtaining real recompense for the losses they suffer from unlawful conduct relating to a strike. Obtaining urgent interdictory relief to put a stop to ongoing damage remains the best remedy to limit losses but, in respect of losses that are already suffered, it seems employers will have a hard row to hoe in recovering anything meaningful unless the Labour Court takes a harder line with section 68 compensation awards against the wrongdoers or delictual claims are pursued successfully, or there is legislative change.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.