Constitutional Court Confirms Jurisdictional Limits On Compensation During Protected Strikes

Introduction

Section 68 of the Labour Relations Act (“LRA”) provides the primary remedies available to employers in the case of an unprotected strike. This entails obtaining an interdict against this industrial action or such other conduct (in contemplation or furtherance of it).  More pertinently to this bulletin, the section also empowers an employer to obtain an order from the Labour Court in claiming for “just and equitable compensation” from a representative trade union for any loss or damages that are attributable to the unprotected strike.  This may typically be loss or damages relating to an employer’s property, diminishing of production resources, obstruction of business operations which impacts on revenue and as linked to unlawful conduct arising from industrial action concerning a representative trade union (in which it has emerged from).

In previous cases, an employer would be able to seek from the Labour Court ‘just and equitable’ compensation for this loss or damage. The Constitutional Court (“ConCourt”) has, however, now confirmed the limited jurisdictional boundaries of the Labour Court in awarding just and equitable compensation in claims arising from protected strikes (as opposed to unprotected ones).  

The issue for determination came before the Court relatively recently in South African Commercial Catering and Allied Workers Union (SACCAWU) v Massmart Holdings Ltd and Others [2026] ZACC 11. The Court here had to decide whether the Labour Court could award ‘just and equitable’ compensation arising from unlawful conduct committed in furtherance of a protected strike in terms of section 68(1)(b) of the LRA.

Background

Following a nationwide protected strike by members of the South African Commercial Catering and Allied Workers Union (“SACCAWU”) against Massmart and its subsidiaries in May 2021, Massmart alleged that during the course of the strike, SACCAWU members and supporters engaged in conduct that materially breached the picketing rules which governed peaceful demonstrations during the strike. 

The conduct complained of included intimidation, obstruction of access to stores, property damage and non‑compliance with COVID‑19 regulations (as applicable at the time). Massmart contended that this conduct disrupted its operations and caused substantial financial loss. On this basis, Massmart instituted proceedings against SACCAWU in the Labour Court seeking ‘just and equitable’ compensation under section 68(1)(b) of the LRA.

Labour Court and Labour Appeal Court’s Findings

SACCAWU raised five exceptions which included an exception that the Labour Court’s jurisdiction to award compensation for losses is limited to conduct which occurred during an unprotected strike. The Labour Court dismissed all five of the exceptions raised by SACCAWU. SACCAWU’s appeal to the Labour Appeal Court against the judgment of the Labour Court also failed.  The Labour Appeal Court agreed with the Labour Court’s findings. 

The Labour Appeal Court reasoned that whilst section 68 of the LRA is headed “strike or lock-out not in compliance with this Act”, the provision is also concerned with any conduct in contemplation or furtherance of a strike or lock-out that does not comply with Chapter IV of the LRA. 

It, therefore, concluded that the words “any conduct” in section 68(1) include conduct that is unlawful, “even if it arises during the course of a protected strike”. 

Appeal before the ConCourt

Unhappy with the Labour Appeal Court’s judgment, SACCAWU launched an application for leave to appeal to the ConCourt persisting with the arguments that it made in the Labour Court and the Labour Appeal Court. SACCAWU contended that where unlawful conduct occurs during a protected strike, civil liability resulting from that conduct is determinable in the High Court in accordance with delictual principles. 

Massmart, on the other hand, argued that within the regulatory scheme created in Chapter IV of the LRA, “protection is afforded to protected strikes and good faith conduct that is undertaken in furtherance of strikes” and picketing that breaches the determined rules is not protected. 

The ConCourt found that the wording and structure of Chapter IV of the LRA, draws a sharp distinction between protected and unprotected strikes.  The Court’s reasoning is briefly set out below. 

Constitutional Court’s Reasoning

What did the minority in the ConCourt say?

The minority judgment penned by Dambuza AJ found SACCAWU’s argument that ‘just and equitable’ relief is impermissible under section 68(1)(b) in respect of conduct undertaken to further a protected strike – takes into account only a portion of Massmart’s pleaded cause of action – that the strike was protected. The minority in the ConCourt further held that it ignores the essence of the pleaded dispute which concerned a breach of the picket framework. In this regard, Dambuza AJ found that specialist courts, the Labour Court and Labour Appeal Court, are specially designed to deal with complaints relating to labour matters. 

And, what did the majority in the ConCourt say?

In an interesting turn of events, the ConCourt’s majority decision however found that section 68 of the LRA confines the Labour Courts’ jurisdiction to award such orders to unprotected strikes. More specifically, it held that this section “serves as a gatekeeper provision: unless the action is unprotected, the Labour Court has no authority to issue interdicts or compensation orders under this section”.  

The majority in the ConCourt emphasised that section 67 read together with section 68 does not create a cause of action or confer automatic jurisdiction to the Labour Court. Rather, once immunity falls away and the strike is still protected, liability must be determined under ordinary legal principles, with the High Court being the appropriate adjudicating body. The majority in the ConCourt held that section 68(1) sets a -

“condition precedent for the jurisdiction of the Labour Court, inasmuch as the section grants that Court exclusive jurisdiction only in matters involving unprotected strikes, lock-outs or related conduct. It serves as a gatekeeper provision: unless the action is unprotected, the Labour Court has no authority to issue interdicts or compensation orders under this section.”

In doing so, the ConCourt expressly restored the authority of Stuttafords Department Stores Ltd v SA Clothing and Textiles Workers Union (2001) 22 ILJ 414 (LAC) which held that section 68 compensation is unavailable for protected strikes. 

The ConCourt further clarified that the wording of National Union of Metalworkers of SA v Dunlop Mixing & Technical Services (Pty) Ltd (2021) 42 ILJ 475 (SCA) suggesting that section 68 of the LRA applies to unlawful conduct during protected strikes was not what the Dunlop decision turned on and was also not binding as the Dunlop decision concerned whether a picket in support of a protected strike qualifies as a “gathering” under the Regulation of Gatherings Act. This, as a result, did not confer Labour Court compensation jurisdiction under this instance.

Key Takeaways of this Case

Employers would, no doubt, have prerogative rights to discipline employees committing such unlawful conduct during a protected strike. However, an employer’s suffering of loss or damages due to unlawful conduct during a protected strike must now be pursued against the trade union (as attributable to the unlawful conduct) as a delictual claim in the High Court.

The effect would accordingly make the recovery process more onerous and/or protracted, in that it would necessitate the institution of action proceedings by way of summons in the High Court (under a common law delictual claim).

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.