If steps were not taken, anarchy and mayhem could become the new normal in SA industrial action. That was the warning last week by labour court judge Edwin Tlhotlhalemaje, when he considered the behaviour of NUM members employed by Betafence SA.
His concerns come from an alarming number of strikes characterised by violence and a growing tendency by employees to ignore court orders.
One particular case exemplifies the problem, and shows the court crafting a new way of dealing with it.
The Betafence strike began on April 7 this year. On April 12, when the employer went to court, an order was issued by agreement of the parties: the strike would stop immediately and work would start again. But three days later Betafence was back in court. The strike had continued. This time the court ordered the NUM to explain why it and its members should not be found in contempt.
Tlhotlhalemaje’s judgment finalising the matter included some refreshingly plain language. Leaving aside the issues that lay behind the strike, consider the judge’s stern words on the question of contempt.
When striking employees were dismissed they were quick to exercise their rights and ask the courts for help, he said.
Quite correctly, employees armed with court orders in their favour would insist that employers abide by and comply with these orders. But, he pointed out, employees "especially in the face of strike interdicts, routinely disregard" court orders because "they simply do not like them". This was often encouraged by union officials, though it also happened that employees refused to heed union advice.
In such cases a court had to conclude that noncompliance with its orders was "both wilful and male fide" — conditions that go towards contempt of court.
In the Betafence case workers said they were "frustrated" by the employer. But, commented the judge, "no amount of frustration with the employer’s alleged conduct can mitigate this level of contempt towards court orders". Contempt had reached a point where the rule of law would become meaningless. "In the end anarchy and mayhem, which ... characterises most industrial actions we have witnessed, [could] become the new normal." Only a tough approach by the courts would stop it.
In this case the only conclusion to be drawn from the workers’ "flagrant" disobedience of the order was that they misled the court, which was thus obliged to show its displeasure.
The judge was also scathing about unions and employees who contended that strikes were peaceful and disciplined, with union officials and stewards "in complete control", whereas in reality violence was often so serious that criminal cases were opened with police.
Finding the employees in contempt of court, Tlhotlhalemaje said that given the level of contempt the employees showed towards the first court order, "an appropriate and heavy penalty should be imposed". And heavy it was: the NUM and the individual employees were between them ordered to pay a fine of R1m. This was coupled with an order that payment of the fine be suspended for two years on condition the NUM and its members are not again found in contempt of any order of the court.
It’s been tried before. In 2014 the labour appeal court reversed a fine of R500,000 imposed on a union by a labour court judge who found the union in contempt. The appeal judges said that that strike was "characterised by barbarism", though contempt by the union was not satisfactorily proved. But they quoted with approval the judge who had heard the matter and had said the time had come to hold trade unions accountable for the actions of their members.
The latest fine, with its delicately suspended balance, poses an intricate challenge.
Will the union and its members risk an appeal?