An Evaluation of the Limitation of the Right to Strike in Terms of the Law of General Application in South Africa
Authors Mlungisi Tenza
Affiliations: Lecturer, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 471 – 492
In recent years, exercising the right to strike and other conduct in contemplation or in furtherance of a strike has often caused havoc, with participants engaging in violent acts resulting in damage to property and the intimidation of other people. Like all the rights in the Bill of Rights, the right to strike is not absolute, and can be limited in terms of section 36 of the Constitution. In terms of section 36 of the Constitution, the limitation of the right to strike can take place in terms of laws of general application. Examples of laws of general application discussed in this article are the Regulation of Gatherings Act 205 of 1993 ("RGA") and the Labour Relations Act 66 of 1996 ("LRA"). The article submits that limiting the right to strike, if a strike is violent, could serve the legitimate purpose of maintaining peace and of creating a just society based on human dignity and freedom. If a protected strike degenerates into violence, and, depending on the degree of violence, the Labour Court can be approached to declare the strike unprotected. The immunity from civil prosecution could be lifted, paving the way for the union and its members to be charged with civil action. The LRA provides victims of violent strikes with remedies such as an interdict, just and equitable compensation, and dismissal where the employer is also affected.